Production Tool Corp. v. Employment and Training Admin., U.S. Dept. of Labor

• Decision Date: 20 September 1982
• Docket Number: 81-2576,Nos. 81-1913,s. 81-1913
• Citation: 688 F.2d 1161
• Parties: PRODUCTION TOOL CORPORATION and Manuel Aguilar, Plaintiffs-Appellants, v. EMPLOYMENT AND TRAINING ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, Defendant-Appellee. KENALL MANUFACTURING COMPANY and Blanca Fabian, Plaintiffs-Appellants, v. EMPLOYMENT AND TRAINING ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1161

688 F.2d 1161

PRODUCTION TOOL CORPORATION and Manuel Aguilar, Plaintiffs-Appellants, v. EMPLOYMENT AND TRAINING ADMINISTRATION, UNITED STATES

DEPARTMENT OF LABOR, Defendant-Appellee.

KENALL MANUFACTURING COMPANY and Blanca Fabian, Plaintiffs-Appellants, v. EMPLOYMENT AND TRAINING ADMINISTRATION, UNITED STATES

DEPARTMENT OF LABOR, Defendant-Appellee.

Nos. 81-1913, 81-2576.

United States Court of Appeals Seventh Circuit.

Argued March 30, 1982.

Decided Sept. 20, 1982.

Richard J. Puchalski, Chicago, Ill., for plaintiffs-appellants.

Harry L. Sheinfeld, U.S. Dept. of Labor, Dan K. Webb, U.S. Atty., Chicago, Ill., for defendant-appellee.

Before BAUER, Circuit Judge, NICHOLS, Associate Judge, ^* and WOOD, Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Production Tool Corp. and Kenall Manufacturing Co. appeal from separate orders affirming final decisions of the United States Department of Labor denying their applications for permanent alien labor certifications as provided for by the Immigration and Nationality Act, § 212(a)(14), 8 U.S.C. § 1182(a)(14) (as amended), and the regulations promulgated thereunder, 20 C.F.R. Pt. 656 (1980). Appellants challenge the validity and application of those regulations. For the following reasons, we affirm.

I

Section 212(a)(14) of the Immigration and Nationality Act, as amended, provides that aliens "seeking to enter the United States, for the purpose of performing skilled or unskilled labor," shall be excluded from admission,

unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that (A) there are not sufficient workers who are able, willing, qualified ..., 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 (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.

In 1977, the Secretary of Labor promulgated new regulations setting forth the procedures "whereby such immigrant labor certifications may be applied for, and given or denied." 20 C.F.R. Pt. 656. In applying for certification on behalf of an alien, the employer must submit various documents which show the employer's efforts to fill the job vacancy with a United States worker. Id. § 656.21(b). The provision at issue requires documentation which "clearly shows" that:

(9)(i) The employer has advertised and is still advertising the job opportunity without success in such media as newspapers of general circulation, and ethnic and professional publications;

(ii) The employer's advertising offers prevailing working conditions and requirements and the prevailing wage for the occupation calculated pursuant to § 656.40 of this Part, states the rate of pay, offers training if the job opportunity is the type for which the employer customarily provides training, and offers wages, terms and conditions of employment which are no less favorable than those offered to the alien;

(iii) The employer's advertising describes the job opportunity with particularity; the documentation shall include a copy of at least one advertisement placed by the employer;

(iv) The employer's advertising has produced no satisfactory results.

Id. § 656.21(b)(9). The regulations require the certifying officer, in judging whether a United States worker is "willing" to take the job opportunity, to examine the results of the employer's recruitment efforts and to "determine if there are other appropriate sources of workers where the employer should have recruited or might be able to recruit U.S. workers." Id. § 656.24(b)(2)(i). Failure by the employer to comply with the application procedures constitutes a separate ground for denying certification. Id. § 656.24(b)(1).

If the certifying officer determines that the applicant has not met the requirements of 20 C.F.R. § 656.21 or that there is a United States worker who is "able, willing, qualified, and available" for the job, the officer issues a Notice of Findings setting forth the specific basis for the decision. Id. § 656.25. The employer or the alien may then submit rebuttal evidence, which the certifying officer must review. A final determination to grant or deny is then made, and if certification is denied, the employer may request administrative-judicial review by a hearing officer. Id. § 656.26.

II

On May 3, 1977, Production Tool filed an application for labor certification on behalf of its employee Manuel Aguilar. The certifying officer denied that application in part for the stated reason that Production Tool "elected not to comply" with the advertising requirements of 20 C.F.R. § 656.21(b)(9). The hearing officer affirmed and the district court denied relief on the same ground. Production Tool admits that it did not comply with that regulation.

On June 13, 1977, Kenall filed an application on behalf of Blanca Fabian. Kenall had advertised the position in the Reader at a wage rate of $4.00. The Certifying Officer, after receiving Kenall's rebuttal evidence, denied certification on the ground, inter alia, that Kenall's newspaper advertisements did not satisfy 20 C.F.R. § 656.21(b)(9) because they did not offer the prevailing wage of $4.70 and were not placed in a newspaper of "general circulation." The Hearing Officer affirmed, noting that counsel for Kenall had conceded, and the record showed, that the advertising did not fully comply with the regulations: "This undisputed fact together with the unacceptable advertising in the Reader establishes a sufficient basis for affirming the denial." The district court entered summary judgment for appellees.

Production Tool and Kenall contend that the Secretary of Labor was without statutory authority to promulgate the regulations at issue and that, even if authorized, the regulations are invalid because they are inconsistent with the command and purpose of § 212(a)(14). Kenall separately argues that the denial of labor certification constituted an abuse of discretion because 1) it had offered to pay and advertise the prevailing wage and 2) the Reader, under Illinois law, is considered a newspaper of general circulation.

III

The validity of the advertising regulation, according to appellants, turns on the distinction between "legislative" and "interpretive" rules. Appellants assert that the regulation at issue is legislative because it "creates or changes existing rights and obligations" and, as such, "require(s) specific statutory authorization." In both decisions, the district courts found that promulgation of the advertising regulation was a valid exercise of the Secretary of Labor's inherent authority to adopt interpretive rules.

After examining the relevant case law, we believe that the distinction between legislative and interpretive rules is of little, if any, value in determining whether the Secretary must have a specific grant of rule making authority to promulgate the regulation at issue. That distinction nonetheless becomes important when reviewing the regulation to determine whether it constitutes a proper exercise of rule making authority.

The distinction between legislative and interpretive rules is generally drawn to determine one of two questions: 1) whether the APA's procedural requirements for rule making apply, see, e.g., Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972), or 2) whether the rule has the "force and effect of law," see, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1704, 60 L.Ed.2d 208 (1979). Legislative rules are said to have the "force and effect of law"-i.e., they are as binding on the courts as any statute enacted by Congress. Chrysler, 441 U.S. at 295, 99 S.Ct. at 1714. "A reviewing court is not free to set aside those regulations simply because it would have interpreted the statute in a different manner." Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977). Legislative rules are valid so long as they are reasonably related to the purposes of the enabling legislation, Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1660, 36 L.Ed.2d 318 (1973), promulgated in compliance with statutory procedures, Chrysler, 441 U.S. at 303, 99 S.Ct. at 1718, and not arbitrary or capricious, Batterton, 432 U.S. at 426, 97 S.Ct. at 2406. Interpretive rules, in contrast, have only persuasive force. Such rules are entitled to varying degrees of deference or weight, but a reviewing court ordinarily is free to substitute its own view of the relevant statute. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). Section 4 of the Administrative Procedure Act (APA), 5 U.S.C. § 553, subjects proposed rule making to certain procedures designed to afford interested parties notice and an opportunity to comment. "Interpretive rules, general statements of policy or rules of agency organization procedure or practice" are exempted from those requirements.

Professor Davis has articulated the test for categorizing a rule as legislative or interpretive as follows:

(R)ules are legislative when the agency is exercising delegated power to make law through rules, and rules are interpretative when the agency is not exercising such delegated power in issuing them. When an agency has no granted power to make law through rules, the rules it issues are necessarily interpretative; when an agency has such granted power, the rules are interpretative unless it intends to exercise the granted power. The statutory grant of power may be specific and clear, or it may be broad, general, vague, and uncertain.

2 K. Davis, Administrative Law Treatise § 7:10 at 54 (2d ed. 1979) ("Davis"). See Stoddard Lumber Co. v. Marshall, 627 F.2d 984, 987 (9th Cir. 1980); Board of Education v. Harris, 622 F.2d 599, 613 (2d Cir. 1979), cert. denied, 449 U.S. 1124, 101 S.Ct. 940, 67...