Durable Mfg. Co. v. U.S. Dept. of Labor, 08-4122.

• Citation: 578 F.3d 497
• Decision Date: 18 August 2009
• Docket Number: No. 08-4122.,08-4122.
• Parties: DURABLE MANUFACTURING CO., et al., Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF LABOR, Employment and Training Administration, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

578 F.3d 497

DURABLE MANUFACTURING CO., et al., Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF LABOR, Employment and Training Administration, et al., Defendants-Appellees.

No. 08-4122.

United States Court of Appeals, Seventh Circuit.

Argued June 5, 2009.

Decided August 18, 2009.

Laura J. Goodloe, Richard J. Puchalski (argued), Law Offices of Richard J. Puchalski, Chicago, IL, for Plaintiffs-Appellants.

Craig A. Oswald (argued), Office of the United States Attorney, Chicago, IL, for Defendants-Appellees.

Before MANION, ROVNER, and TINDER, Circuit Judges.

MANION, 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"), challenging a regulation promulgated by DOL that effectively 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:

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 (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 effective 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 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)(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 sufficiency 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 imposition 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 unaffiliated Illinois businesses filed applications for labor certifications on behalf of fifteen potential alien employees. 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 petitions⁵ 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 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, 494 U.S. 638, 650, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990) (quoting Fed. Mar. Comm'n v. Seatrain Lines, Inc., 411 U.S. 726, 745, 93 S.Ct. 1773, 36 L.Ed.2d 620 (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 (hereinafter "sufficient workers determination"); and 2) employment 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 certification expires if not filed in support of a visa application within 180 days of the certification's approval. Thus, DOL implemented § 1182(a)(5)(A)(i)(I) by imposing a time limit between the certification and the visa application. Put another way, DOL's imposition of that 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 becomes void. Thus, the amended § 656.30(b) ensures that the snapshots of the labor market taken when labor certifications 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 approved labor...