Durable Mfg. Co. v. U.S. Dept. of Labor

• Decision Date: 04 November 2008
• Docket Number: No. 08 C 2782.,08 C 2782.
• Citation: 584 F.Supp.2d 1092
• Parties: DURABLE MANUFACTURING COMPANY, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF LABOR, Employment and Training Administration, and United States Department of Homeland Security, Bureau of Citizenship and Immigration Services, Defendants.
• Court: U.S. District Court — Northern District of Illinois

584 F.Supp.2d 1092

DURABLE MANUFACTURING COMPANY, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF LABOR, Employment and Training Administration, and United States Department of Homeland Security, Bureau of Citizenship and Immigration Services, Defendants.

No. 08 C 2782.

United States District Court, N.D. Illinois, Eastern Division.

November 4, 2008.

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Richard James Puchalski, Laura J. Goodloe, Law Offices of Richard J. Puchalski, Donald Edward Puchalski, Sklodowski, Puchalski & Reimer, Chicago, IL, for Plaintiffs.

Craig Arthur Oswald, AUSA, Sheila McNulty, United States Attorney's Office, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge.

This case presents a challenge to administrative regulations recently adopted by the United States Department of Labor ("DOL"). Plaintiffs are a group of fourteen unaffiliated businesses that received approved labor certifications from the DOL. Plaintiffs sued the United States Department of Labor, Employment and Training Administration and the United States Department of Homeland Security, Bureau of Citizenship and Immigration Services (collectively, "Defendants"). Plaintiffs and Defendants have filed cross-motions for summary judgment. For the reasons below, the Court denies Plaintiffs' Motion for Summary Judgment, and grants Defendants' Cross-Motion for Summary Judgment.

BACKGROUND

Employers and potential immigrants seeking permanent resident status based upon present or prospective employment must comply with the Immigration and Nationality Act ("INA"). First, an alien's prospective employer must petition the DOL for a "labor certification" on the alien's behalf. Section 212(a)(5)(A) of the INA, codified at 8 U.S.C. § 1182(a)(5)(A), provides:

(i) In general. 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 determined and certified to the Secretary of State and the Attorney General that—

(I) 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

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

8 U.S.C. § 1182(a)(5)(A) (2000). The DOL approves a labor certification application when it determines that there are not sufficient American workers to perform the job in question and that the employment of an alien worker in the position will not adversely affect similarly employed American workers. Next, the prospective employer must file the approved labor certification along with a visa petition (specifically, Form 1-140) with the United States Department of Homeland Security ("DHS"), Bureau of Citizenship and Immigration Services ("CIS").¹ The subsequent steps required to receive permanent resident status are not at issue in this case.

The Secretary of the Department of Labor (the "Secretary") has promulgated regulations governing the administration of the labor certification process. In 2007, the DOL modified its regulations regarding the time period a labor certification remained valid. Under the prior regulations, approved labor certifications remained "valid indefinitely." 20 C.F.R. § 656.30(a) (2006). The 2007 regulation, however, states:

(1) An approved permanent labor certification granted on or 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 Homeland Security within 180 calendar days of July 16, 2007.

20 C.F.R. § 656.30(b) (2008). The CIS will reject a visa petition filed with an expired labor certification. (See, e.g., R. 24, App. to Pls.' Rule 56.1 Stmt. Facts at 6.)

Plaintiffs are a group of fourteen unaffiliated business employers whose labor certification applications were approved during 2006 and 2007, some before and some after July 16, 2007. (R. 24.) In Count I, Plaintiffs assert that the Secretary exceeded the scope of her statutory authority in promulgating 20 C.F.R. § 656.30(b), and that the regulation constitutes an abuse of discretion. (R. 1, Compl. at 13.) Because Plaintiffs do not object to the administrative process that the DOL used to enact the regulation, the Court assumes that the regulation was issued through proper notice and comment rulemaking procedures under the Administrative Procedure Act, 5 U.S.C. §§ 551-559 (2000). Count I also asserts the nearly identical allegation that a validity period could only be imposed through congressional amendment of the INA. (Id. ¶ 41.) Plaintiffs further seek summary judgment declaring that 20 C.F.R. § 656.30(b) has an improper retroactive effect and cannot be applied to Plaintiffs' labor certification applications filed before the new regulation's effective date. (Id. at 13.) In Count II, Plaintiffs seek injunctive and mandamus relief against the DHS requiring that agency to process their visa petitions. (Id. at 14.)

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the evidence demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c). On cross-motions for summary judgment, the Court construes all the facts and reasonable inferences in favor of the party against whom the motion under consideration is made. Schneider v. Sentry Group Long Term Disability Plan, 422 F.3d 621, 626 (7th Cir.2005). Here, the parties agree on all material issues of fact.² (R. 19, Pls.' Rule 56.1 Stmt. Facts; R. 37, Defs.' Resp. to Pls.' Rule 56.1 Stmt. Facts.)

ANALYSIS

I. The DOL's Rulemaking Authority

Plaintiffs first argue that the DOL does not have authority to promulgate the new regulations. As a result, Plaintiffs claim the 180-day time period in Section 656.30(b) is unenforceable.

A. Agency Rulemaking Authority

Even absent an express delegation of rulemaking authority, an administrative agency charged with applying a statute necessarily makes interpretive choices regarding the construction of the statutory scheme it is obligated to administer. See United States v. Mead, 533 U.S. 218, 227-28, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001); Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) ("The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress."). "The Immigration and Nationality Act does not expressly authorize the Secretary [of Labor] to issue regulations." Industrial Holographics, Inc. v. Donovan, 722 F.2d 1362, 1365 (7th Cir. 1983). Yet, the INA vests the DOL with substantial discretion to grant or deny labor certification applications. See Production Tool Corp. v. Employment & Training Admin., 688 F.2d 1161, 1166 (7th Cir.1982). "While the Secretary is charged with the duty to exercise this discretion, the statute does not specify the procedures to be followed or the standards to be applied. . . . Thus we may reasonably assume that Congress contemplated that the Secretary would issue regulations filling in the essential details." Id. at 1167; Industrial Holographics, 722 F.2d at 1367 n. 9 (suggesting that "Congress implicitly delegated to the Secretary authority to promulgate legislative regulations under section 212(a)(14) [now section 212(a)(5)]").

Regardless of whether Congress implicitly delegated rulemaking authority to the DOL to fill in the gaps of Section 1182(a)(5), "[a]ll agencies charged with enforcing and administering a statute have `inherent authority to issue interpretive rules informing the public of the procedures and standards it intends to apply in exercising its discretion.'" Metro. School Dist. v. Davila, 969 F.2d 485, 490 (7th Cir.1992) (quoting Production Tool, 688 F.2d at 1166); Industrial Holographics, 722 F.2d at 1366 ("Where an agency must make a large number of discretionary decisions, it is entirely appropriate for it to issue regulations informing the public about the standards and procedures the agency intends to apply."). According to an enduring line of Seventh Circuit cases, the Secretary of Labor has inherent rulemaking authority to issue regulations governing the administration of Section 1182(a)(5). See Production Tool, 688 F.2d at 1167; Industrial Holographics, 722 F.2d at 1366 (referring to the Secretary's "inherent power to develop standards and procedures for achieving the statute's goals"). As explained below, regulations adopted pursuant to this "interpretive" authority³ are not binding on the Court, but must be independently evaluated to ensure they are consistent with the statute and are aimed at promoting the statute's underlying purpose. See Industrial Holographics, 722 F.2d at 1367-68.

When Congress delegates, explicitly or implicitly, the power to issue regulations to fill in gaps in the enacted law and an agency exercises that power, such rules are binding on the Court unless they are "procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute." Mead, 533 U.S. at 227-29, 121 S.Ct. 2164; see Industrial Holographics, 722 F.2d at 1366 n. 6. Otherwise, an agency's interpretation is "`entitled to respect' only to the extent it has the `power to persuade.'" Gonzales v. Oregon, 546 U.S. 243, 256, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). Unlike rules...