International Union of Bricklayers and Allied Craftsmen v. Meese

• Decision Date: 17 May 1985
• Docket Number: No. 84-5339,84-5339
• Citation: 761 F.2d 798
• Parties: 119 L.R.R.M. (BNA) 2510, 245 U.S.App.D.C. 395 INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTSMEN, et al., Appellants, v. Edwin MEESE III, Attorney General of the United States, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 798

761 F.2d 798

119 L.R.R.M. (BNA) 2510, 245 U.S.App.D.C. 395

INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTSMEN, et al., Appellants, v. Edwin MEESE III, Attorney General of the United States, et al.

No. 84-5339.

United States Court of Appeals District of Columbia Circuit.

Argued March 18, 1985.

Decided May 17, 1985.

Seymour M. Waldman, New York City, with whom George Kaufmann and Barry W. Levine, Washington, D.C., were on the brief, for appellants.

Mary Reed, Atty., Dept. of Justice, of the Bar of the Supreme Court of Nevada, pro hac vice by special leave of the Court, with whom Richard K. Willard, Acting Asst. Atty. Gen., and Thomas W. Hussey, Asst. Director, Office of Immigration Litigation, Dept. of Justice, Washington, D.C., were on the brief, for appellees.

Before WALD, EDWARDS and DAVIS ^*, Circuit Judges.

Opinion for the Court filed by Circuit Judge DAVIS.

DAVIS, Circuit Judge:

Appellants, plaintiffs below, are an international union representing bricklayers and other construction craftsmen, a local union (within the international) representing such workers in Pennsylvania, and three members of the local. They brought suit in the district court (against the Attorney General, the Secretary of State, and the Immigration and Naturalization Service (INS)) seeking a declaration that certain internal guidelines promulgated by the INS are unlawful, as well as injunctive relief prohibiting continued application of these guidelines by the Department of Justice and the State Department. The district court, Pratt, J., dismissed the complaint for lack of jurisdiction, lack of standing on the part of appellants, and mootness. We reverse and remand for further proceedings consistent with this opinion.

I.

Section 221(a)(2) of the Immigration and Nationality Act, as amended (the Act), 8 U.S.C. Sec. 1201(a)(2) (1982), provides for the issuance of entry visas to nonimmigrant aliens who fit into one of the categories specified in Sec. 101(a)(15) of the Act, 8 U.S.C. Sec. 1101(a)(15). For the purposes of this case, two of those categories are relevant. The first, which entitles the entering alien to a "B-1" classification, includes an alien [with exceptions not relevant here] having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business.

8 U.S.C. Sec. 1101(a)(15)(B). The second, which entitles the entering alien to an "H-2" classification, is for:

an alien having a residence in a foreign country which he has no intention of abandoning ... (ii) 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. Sec. 1101(a)(15)(H). Corresponding to Sec. 101(a)(15)(H)(ii), supra, Sec. 212(a)(14) prohibits entry by aliens

for the purpose of performing skilled or unskilled labor, 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.

8 U.S.C. Sec. 1182(a)(14); see 8 C.F.R. Sec. 212.8 (1984) (INS regulations concerning procedures for processing applications for H-2 entry).

In order to ease the administrative difficulties associated with entries into this country, the INS maintains internal agency guidelines, called "Operations Instructions" or "OI's," dealing with the proper procedure under the Act in various situations. At issue here is Sec. 214.2(b) of these Operations Instructions, which provides:

Each of the following may also be classified as a B-1 nonimmigrant [under Sec. 101(a)(15)(B) of the Act] if he/she is to receive no salary or other remuneration from a United States source (other than an expense allowance or other reimbursement for expenses incidental to the temporary stay).

* * *

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(5) An alien coming to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the U.S. or to train U.S. workers to perform such service, provided: the contract of sale specifically requires the seller to perform such services or training, the alien possesses specialized knowledge essential to the seller's contractual obligation to provide services or training, the alien will receive no remuneration from a U.S. source, and the trip is to take place within the first year following the purchase.

Appellants charge that, pursuant to this Operations Instruction, the State Department (which follows Sec. 214.2(b) of the Operations Instructions) has issued visas to, and INS has allowed entry of, certain aliens without the procedures required by (and therefore in violation of) Secs. 101(a)(15)(H)(ii) and 212(a)(14) of the Act. In their complaint, appellants alleged that the B-1 visas were issued to a group of Italian nationals for the purpose of installing a prefabricated sawmill in Kane, Pennsylvania--and that those aliens were admitted into the country. The allegations are that, during the period in which the Italians constructed the sawmills, the individual appellants and other members of the local and international unions were ready, willing and able to perform the work on the mill. The sawmill was completed in June 1983 and the Italians left on July 4 of that year.

During the course of proceedings in the trial court, appellants discovered that in 1977 B-1 visas were issued to, and entry was allowed of a group of West German bricklayers who came to the United States to construct large furnaces in Theodore, Alabama. The parties disagree as to whether other instances of entry under the Operations Instruction have occurred. ¹ The parties did, however, present sufficient evidence for making the jurisdictional and standing determinations required in this case.

The district court ordered the complaint dismissed on three grounds. First, the court briefly suggested that it lacked subject matter jurisdiction because appellants' complaint draws into question the discretionary determinations of consular officials. Second, the court found that appellants lacked standing to bring this action because they failed to demonstrate that aliens would deprive them of masonry jobs in the future. The court characterized appellants' complaints as requesting an advisory opinion regarding the legality of the INS Operations Instruction. Third, the court held that the case was moot, since the appellants filed suit after the work at the Kane sawmill was complete. We consider each of these points in order. ²

II.

The district court relied primarily on the authority of Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) and Wan Shih Hsieh v. Kiley, 569 F.2d 1179 (2d Cir.), cert. denied sub nom. Wan Shih Hsieh v. INS, 439 U.S. 828, 99 S.Ct. 102, 58 L.Ed.2d 121 (1978), for its conclusion regarding subject matter jurisdiction. Each of those cases concerned challenges to a decision by a consular officer on a particular visa application. In this situation, the Supreme Court said:

The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.

Kliendienst v. Mandel, 408 U.S. at 766, 92 S.Ct. at 2583 (quoting Lem Moon Sing v. United States, 158 U.S. 538, 547, 15 S.Ct. 967, 970, 39 L.Ed. 1082 (1895)). This proposition has no application here because appellants do not challenge a particular determination in a particular case of matters which Congress has left to executive discretion. Rather, they charge that the general Operations Instruction promulgated by the INS violates the pattern set forth in Secs. 101(a)(15)(H) and 212(a)(14) of the Act as to the proper manner by which nonimmigrant aliens shall be admitted to perform labor. The federal courts have jurisdiction over this type of case to assure that the executive departments abide by the legislatively mandated procedures. See, e.g., Narenji v. Civiletti, 199 U.S.App.D.C. 166, 617 F.2d 745 (1979)(judicial review of INS regulation), cert. denied sub nom. Confederation of Iranian Students v. Civiletti, 446 U.S. 957, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980); Castaneda-Gonzalez v. INS, 183 U.S.App.D.C. 396, 564 F.2d 417, 428 n. 25 (1977) ("The fact that an erroneous administrative interpretation of the law in one context [i.e., when made by consular officials] is not correctable by the courts because it is unreviewable is no reason for the courts to adopt it as the governing standard for administrative action which is reviewable"); North American Industries v. Feldman, 722 F.2d 893 (1st Cir.1983) (federal courts may review an INS Operations Instruction to determine whether it is consistent with the Act). Thus, the district court erred in suggesting it lacked subject matter jurisdiction.

III.

Even if a federal court has subject matter jurisdiction over an issue raised in a complaint, the suit may not constitute a "case" or "controversy" over which that court can exercise its power under Article III of the Constitution. A prime element of the "case" or "controversy" requirement is that the plaintiff have standing to complain of the acts alleged and to seek the relief requested. The constitutional aspect of standing requires that the plaintiff actually have been injured or threatened with injury by the conduct set forth in the complaint, that the injury be "fairly traceable" to the challenged action, and that a...