Elton Orchards, Inc. v. Brennan, No. 74-1315

• Decision Date: 19 December 1974
• Docket Number: No. 74-1315
• Citation: 508 F.2d 493
• Parties: The ELTON ORCHARDS, INC., Plaintiff-Appellee, v. Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 493

508 F.2d 493

36 A.L.R.Fed. 289

The ELTON ORCHARDS, INC., Plaintiff-Appellee, v. Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, et al., Defendants-Appellants.

No. 74-1315.

United States Court of Appeals, First Circuit.

Dec. 19, 1974.

Carl W. Gerig, Jr., Counsel for Manpower Litigation, U.S. Dept. of Labor, and John Edward Harris, Atty., Dept. of Justice, Washington, D.C., with whom John L. Murphy, Chief, Government Regulations Section, Crim. Div., and George W. Masterton, Atty., Dept. of Justice, were on brief, for appellants.

Edward F. Smith, Andre J. Barbeau, and Joseph Stewart, Concord, N.H., on brief for Benjamin C. Adams, Commissioner, Dept. of Employment Security, State of New Hampshire, appellant.

Shane Devine, Manchester, N.H., with whom Devine, Millimet, Stahl & Branch, Manchester, N.H., was on brief, for appellee.

Katherine S. Gruenheck, Washington, D.C., on brief for Migrant Legal Action Program, Inc., Amicus Curiae.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

This is an appeal by the Secretary of Labor and two other allied federal defendants from a preliminary injunction entered by the District Court for New Hampshire ordering them to make available to appellee a number of foreign apple pickers. At issue is the interstate clearance system for recruitment of agricultural workers (ICS) established by 20 C.F.R. 602.2 and 602.9, under authority of the Wagner-Peyser Act, 29 U.S.C. 49 et seq. The ICS is one element of a complex statutory structure designed to facilitate the employment of domestic workers for seasonal agricultural labor, and to permit the use of foreign nationals temporarily admitted to the United States to work for a specific employer if domestic workers are unavailable. The events leading to this appeal cannot be understood without prior explanation of the statutes and regulations involved.

The Wagner-Peyser Act authorizes the establishment of a federal employment service, and the designation of state employment services to function in conjunction with the federal service and to receive federal funding. The responsibilities of the federal service are lodged with Manpower Administration in the Department of Labor. The designated state agencies in New Hampshire and Louisiana, which figure in the events described below, are their respective Departments of Employment Security. Regulations promulgated pursuant to the Wagner-Peyser Act provide first for state agency placement of local workers with local agricultural employers. 20 C.F.R. 602.8. If local workers are not available, the ICS may be used to recruit, through other state agencies, workers available in other states. 20 C.F.R. 602.2 and 602.9. Workers recruited through the state agencies are protected by a series of regulations prescribing minimum working and living conditions. 20 C.F.R. 602.9-602.11, 620.1-620.17.

The Immigration and Nationality Act, 8 U.S.C. 1101 et seq., permits the admission of aliens to serve as temporary agricultural laborers if domestic workers are unavailable. The Act defines as a 'nonimmigrant' an alien who '. . . is coming temporarily to the United States to perform temporary services 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). Nonimmigrants thus defined may be admitted upon a determination by the Attorney General after 'consultation with appropriate agencies of the Government' that the pertinent requirements are satisfied. 8 U.S.C. 1184(c). This determination is in fact delegated to the Immigration and Naturalization Service (INS.) INS regulations require that an employer's petition for the admission of nonimmigrant aliens to perform temporary service be accompanied by '. . . a certification from the Secretary of Labor . . . stating that qualified persons in the United States are not available and that the employment of the beneficiary will not adversely affect the wages and working conditions of workers in the United States similarly employed, or a notice that such certification cannot be made . . ..' 8 C.F.R. 214.2(h)(3). If the Secretary of Labor states that the certification cannot be made '. . . the petitioner shall be permitted to present (to INS) countervailing evidence that qualified persons in the United States are not available and that the employment policies of the Department of Labor have been observed.' Id.

The Labor Department regulations empower the Regional Manpower Administrator to issue the certification required by the immigration regulations if the employer has first filed an offer of employment with the state employment office; and if the Regional Administrator finds that United States workers would not be adversely affected by the admission of alien workers, and that '. . . reasonable efforts have been and will continue to be made by the (state) Employment Service and the employers to obtain domestic workers . . . to perform the work for which the services of temporary foreign workers are requested, and for which domestic workers are not available.' 20 C.F.R. 602.10(d)(2). Use of the interstate clearance system may be required by the Regional Administrator as a part of the employer's 'reasonable efforts' to obtain domestic workers. 20 C.F.R. 602.10(d)(2).

Appellee has traditionally used, and prefers to use, crews of apple pickers from the British West Indies. In past years appellee, along with other New England apple growers, has sumbitted to the state employment service clearance orders requesting apple pickers, and, after hiring the few workers locally available, has obtained the requisite certification for the admission of alien workers. On June 10, 1974, appellee submitted to the New Hampshire Department of Employment Security (NHDES) a clearance order requesting 50 workers. The NHDES forwarded appellee's clearance order along with those of other New Hampshire growers to the Regional Manpower Administration with a request for the certification of 404 foreign workers, local workers being unavailable. On July 2, the Regional Manpower Administration notified all six New England state employment services that they should increase their efforts to recruit local workers, and that they were to utilize the ICS, extending the clearance orders to Puerto Rico, Ohio, Texas, and Louisiana. ¹

On August 8, appellee was advised by the NHDES that its order would be filled by workers recruited from various parts of Louisiana who had no apple picking experience. In the ensuing five weeks appellee, through an assortment of representatives in New Hampshire and New York, changed its mind half a dozen times with respect to whether it would hire the Louisiana workers. ² Appellee's order and that of one small orchard were the only orders filled by interstate recruitment through the ICS. Late in August, and early in September, the Department of Labor certified the need for aliens to work in the other New Hampshire orchards. ³ On September 12, appellee filed its complaint in district court, alleging that the certification of foreign workers to other orchards coupled with the refusal to certify them to appellee was arbitrary, capricious, invidiously discriminatory, and a deprivation of property without due process.

The district court held a hearing on September 13, received memoranda from the parties on September 16, and the following day entered an order requiring appellants to make available to appellee 'its fair proportion of the foreign pickers'. ⁴ ] Appellants, rather than attempt to take foreign workers from other orchards, certified 34 additional foreign workers for appellee.

Appellants first suggest that the district court lacked jurisdiction, and that appellee failed to exhaust the administrative remedies available to it. We find neither argument persuasive. While we agree with appellants that the district court's reliance on 28 U.S.C. 1346 was mistaken, Richardson v. Morris, 409 U.S. 464, 465-466, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973), we also agree with appellee's suggestion at oral argument that, as we and a number of circuits have held, jurisdiction may properly be grounded on Section 10 of the Administrative Procedure Act, 5 U.S.C. 701(a), 702, 704 and 706. Bradley v. Weinberger, 483 F.2d 410, 413-414 (1st Cir. 1973); Pickus v. United States Board of Parole, 507 F.2d 1107, n. 4 at 1109 (D.C.Cir. 1974).

With respect to exhaustion, appellants suggest that since it is the Attorney General who is empowered to admit aliens as nonimmigrant workers under 8 U.S.C. 1184(c), appellee should have availed itself of its right to file a petition for the admission of foreign workers, submitting to the Immigration and Naturalization Service its evidence that '. . . qualified persons in the United States are not available and that the employment policies of the Department of Labor have been observed.' 8 C.F.R. 214.2(h)(3). Certainly appellee might have pursued such a course, but its failure to do so does not preclude judicial review. The exhaustion doctrine functions to prevent the disruption of administrative processes by withholding judicial review until the agency has developed review until the agency has developed and exercised the discretion entrusted to it by law. McKart v. United States,395 U.S. 185, 193-194, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); Parisi v. Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972). ⁵

'Closely related to the above reasons is a notion peculiar to administrative law. The administrative agency is created as a separate entity and invested with certain powers and duties. The courts ordinarily should not interfere with an agency until it has completed its action, or else has clearly exceeded its jurisdiction. As Professor Jaffe puts it 'the exhaustion doctrine is, therefore, an expression of executive and administrative autonomy." 395 U.S. at 194, 89 S.Ct. at 1663, citing, L....