International Longshoremen's and Warehousemen's Union v. Meese

Decision Date20 December 1989
Docket NumberNo. 87-4083,87-4083
Citation891 F.2d 1374
Parties, 1990 A.M.C. 2197 INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION; International Longshoremen's and Warehousemen's Union, Local 27; International Longshoremen's and Warehousemen's Union, Local 32; International Longshoremen's and Warehousemen's Union, Local 98, Plaintiffs-Appellants, v. Edwin M. MEESE, Attorney General of the United States; George P. Schultz, Secretary of State of the United States; U.S. Department of Immigration and Naturalization, Defendants- Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Richard S. Zuckerman, Leonard, Carder, & Zuckerman, San Francisco, Cal., for plaintiffs-appellants.

Charles Pinell, Asst. U.S. Atty., Seattle, Wash., for defendants-appellees.

Rick T. Haselton, Lindsay, Hart, Neil & Weigler, Portland, Or., Thomas W. Gleason, New York City, for amicus.

Appeal from the United States District Court for the Western District of Washington.

Before NELSON, BOOCHEVER and BRUNETTI, Circuit Judges.

BOOCHEVER, Circuit Judge:

A Canadian innovation in transporting logs by means of self-loading vessels has precipitated this litigation. Plaintiffs, International Longshoremen's and Warehousemen's Union and three local affiliates 1, appeal the district court's denial of their motion for a preliminary injunction and its grant of summary judgment in favor of defendants Edwin Meese, George Schultz, and the Immigration and Naturalization Service ("INS"). The ILWU brought this action to challenge an INS decision characterizing Canadian operators of onboard cranes as "alien crewmen" entitled to enter the United States and operate the cranes to load logs on two logging vessels, instead of excluding them as alien workers. The International Longshoremen's Association ("ILA"), the Master Contracting Stevedore Association, and the Alaska Longshore Employers' Association have filed amicus briefs urging reversal of the district court decision.

We reverse and remand.

FACTS

Kingcome Navigation Company LTD. (Kingcome) is a Canadian company engaged in the business of transporting logs in the coastal waters of Canada and the United States (normally Alaska and Washington). Kingcome has two logging vessels, the Haida Brave and the Haida Monarch, that are equipped with mounted cranes specifically designed for use on board these vessels. The ships are self-propelled and self-dumping barges.

Previously, logs were either loaded from shore onto barges or were towed by tugboats. These methods of transport proved costly in terms of logs lost at sea and delays caused by inclement weather. The two Haida ships were designed to carry logs on their decks. These ships reduce the manpower necessary to load and unload the logs. The onboard crane allows the ships to load and unload cargo without the use of port facilities.

The logs must be loaded in such a manner that the bundles interlock. The logs are stacked on the deck in an interlocking fashion so they stay in place without being lashed to the deck. Failure to load the logs properly could affect the stability of the vessel at sea and during the dumping process. The weight of the logs keeps the ship's propeller and rudder under water. If the load fell off at sea, the ship could lose propeller and rudder immersion until the ballast tanks were flooded. To unload the logs, ballast tanks on one side are partially flooded and the logs slide into the water. The ship could sink if the logs are not loaded in a stable manner.

Kingcome contends that special training is necessary to load logs correctly on its two ships. The crane operators receive on the job training, and one operator testified that an operator gains full competency only after ten months to one year on the job.

It is undisputed that the crane operators do not always travel with the ship on Canadian trips. Rather, the operators are frequently flown to the vessel solely to load or unload the cargo, and then flown out again. The district court stated, however:

Because their employer is aware of and seeks to satisfy United States immigration laws, the crane operators always enter United States waters on the vessels and remain on them until their return to Canada. They are also listed on the register of crew members during the trips to the United States.

On April 19, 1985, Kingcome wrote to the INS requesting a ruling that its crane operators were "alien crewmen" for the purposes of the immigration laws and thus entitled to work in the United States. On June 5, 1985, the Regional Commissioner of the INS issued an advisory opinion that Kingcome's crane operators were "alien crewmen". The INS stated:

It has long been held that a mess cook on board a vessel qualifies as a 'crewman' although such a person is not involved with the navigation or handling of the vessel. It follows that a crane operator can also be considered as a 'crewman' In response to the expressed concerns of the ILA, the INS issued a memorandum regarding its policy pertaining to the cargo handling activities of alien crewmen. The INS stated its consistent policy since 1964 was that it had " 'no jurisdiction under the immigration laws to restrict the duties or work performed on board a vessel or aircraft by a crewman.' " (emphasis added). The INS' policy generally distinguishes activities performed on board the vessel from those performed on shore. "There is nothing in the immigration laws to prohibit a crewman from performing work on board his vessel or at dockside, so long as the duties performed have a direct relationship to what are normal operations of the particular vessel." (emphasis added). The INS stated section 1101(a)(15)(D) defined nonimmigrant crewman as providing "service on board a vessel ... or aircraft." "In consideration of this phraseology and absent a provision in the law prohibiting on board cargo handling functions by crewmen, the Service may not impose a policy which characterizes on board activities of crewmen as impermissible." This memorandum was sent to all regional offices.

due to the person 'serving in any capacity on board a vessel,' as set forth in sections 101(a)(10) and 101(a)(15)(D) of the act. [Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101(a)(10) and 1101(a)(15)(D) ].

PROCEEDINGS BELOW

The ILWU filed a timely complaint seeking a declaration that the defendants' interpretation and application of the "alien crewman" provision in the INA, 8 U.S.C. section 1101(a)(15)(D), was unlawful, and an injunction prohibiting the defendants from allowing alien laborers to perform labor in the United States. In addition to injunctive and declaratory relief, the ILWU sought mandamus relief to compel the defendants to enforce the immigration laws.

The plaintiffs moved for a preliminary injunction. The district court ruled that "[p]laintiffs' motion for preliminary injunction must be DENIED because they have failed to show any probability of success on the merits.... Judgment for the government is, therefore, appropriate." (emphasis in original).

After reviewing the motions, affidavits, depositions and "other documents filed in support and opposition", the district court sua sponte granted summary judgment to the defendants in the same order. The court reasoned that the crane operators were crewmen, and required for the normal operation and service of the two vessels. The district court emphasized the unique design of the ships and the special qualifications necessary to operate the onboard cranes, and properly load the ships. The court concluded that these crane operators were properly allowed entry into the United States as alien crewmen.

The ILWU filed a timely notice of appeal.

DISCUSSION
I. JURISDICTION

This case arises under the federal immigration laws. Consequently, the district court had subject matter jurisdiction pursuant to 28 U.S.C. section 1331 (federal question) and 8 U.S.C. section 1329 (district court has original jurisdiction over all cases arising under the immigration laws). In addition, the district court had subject matter jurisdiction pursuant to 28 U.S.C. section 1361 because the ILWU sought mandamus relief against federal officers.

This case, however, also involves judicial review of the actions of the INS, an administrative agency. Not every agency decision is subject to judicial review. See e.g. Heckler v. Chaney, 470 U.S. 821, 828, 105 S.Ct. 1649, 1654, 84 L.Ed.2d 714 (1985) (citing 5 U.S.C. §§ 701-706 (1982)). Neither party raised the question whether the INS' action was reviewable, but because this question goes to the subject matter jurisdiction of this court, we must raise the question sua sponte.

A. THE ACTION BY THE INS IS REVIEWABLE UNDER THE ADMINISTRATIVE PROCEDURE ACT.

5 U.S.C. sections 701-706 (1982) of the Administrative Procedure Act (APA) The ILWU brought suit generally challenging the INS's practice of allowing alien workers to perform labor in the United States without certification by the Secretary of Labor allegedly in violation of 8 U.S.C. section 1182(a)(14). Specifically, the ILWU complains of two actions of the INS: 1) its advisory opinion defining alien crewmen to include the Kingcome crane operators; and 2) its declared policy that it lacks jurisdiction over the onboard activities of alien crewmen in United States territorial waters. The INS' advisory opinion and policy statement were based on its interpretation of the INA.

                govern judicial review of agency action.   Section 702 generally provides a right of judicial review to any person "adversely affected or aggrieved" by agency action.  5 U.S.C. section 702 (1982).   Other sections of the APA, however, impose limits on this general right of judicial review.   First, section 704 of the APA provides for judicial review of "final agency action for which there is no other adequate remedy...."  5 U.S.C. section 704 (1982) (emphasis added).
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