De Jesus Ramirez v. Reich

• Decision Date: 06 October 1998
• Docket Number: Nos. 97-5276,s. 97-5276
• Citation: 156 F.3d 1273
• Parties: Roberto DE JESUS RAMIREZ, et al., Appellants, v. Robert B. REICH, Secretary of Labor, Appellee. to 97-5281.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1273

156 F.3d 1273

332 U.S.App.D.C. 245

Roberto DE JESUS RAMIREZ, et al., Appellants, v. Robert B. REICH, Secretary of Labor, Appellee.

Nos. 97-5276 to 97-5281.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 9, 1998.

Decided Oct. 6, 1998.

Appeal from the United States District Court for the District of Columbia (96cv02463, 96cv02740, 96cv02741, 97cv00101, 97cv00102, 97cv00103).

Michael E. McKenzie argued the cause and filed the briefs for appellants.

Lisa H. MacPhee, Special Assistant United States Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, United States Attorney, and R. Craig Lawrence, Assistant United States Attorney.

Before: SILBERMAN, HENDERSON, and RANDOLPH, Circuit Judges.

SILBERMAN, Circuit Judge:

Appellants are six aliens who challenged as arbitrary and capricious the Secretary of Labor's denial of labor certification applications filed by their employers. ¹ The district court granted the Secretary's motion to dismiss on the ground that the aliens failed to exhaust their administrative remedies and, in the alternative, that their claims were moot. We affirm the district court's dismissal of appellants' claims, although on different grounds than those on which the district court relied.

I.

The Immigration and Nationality Act includes among the classes of "excludable aliens" (i.e., aliens ineligible to receive visas or be admitted to the United States) those aliens seeking entrance to the United States for the purpose of performing skilled or unskilled labor. 8 U.S.C. § 1182(a)(5)(A)(i) (1994). An alien avoids this classification only if the Secretary of Labor determines and certifies to the Secretary of State and the Attorney General that "there are not sufficient [American] workers who are able, willing, qualified, and available" and that "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)(i)(I), (II).

The Department of Labor has promulgated a comprehensive set of regulations governing the issuance of labor certifications. See 20 C.F.R. pt. 656 (1998). The certification process begins when an employer, on behalf of an alien that the employer seeks to hire, files an application for labor certification with the local Employment Service office. See id. § 656.21(a). The regulations require the employer to describe the alien's qualifications and the employment position on the application, see id. § 656.21(a)(1),(2), make certain assurances related to the job offer, see id. § 656.20(c), and submit documentation regarding the employer's efforts to hire an American worker, see id. § 656.21(b). A "Certifying Officer" then reviews the employer's submissions and decides either to grant the labor certification or to issue a Notice of Findings based on whether the employer complied with the applicable regulations, and on whether the employer's submissions satisfy the Act's statutory requirements (no willing, able, qualified and available American workers, and no adverse affect of alien employment on American workers). See id. § 656.24(b)(1)-(3).

If the Certifying Officer issues a Notice of Findings, that notice must specify the basis for not granting the certification. See id. § 656.25(c)(2). The employer may then file a rebuttal to the Notice of Findings (the alien may also file a rebuttal, but only if the employer does). See id. § 656.25(d). If a rebuttal is not timely filed, the Notice of Findings becomes the Secretary of Labor's final decision denying the certification, the available administrative remedies are deemed to have been not exhausted, and any further appeals to the Board of Alien Labor Certification Appeals (Appeals Board) are forfeited. See id. § 656.25(c)(3). If a rebuttal is timely filed by the employer, the Certifying Officer reconsiders the application in light of any new evidence and makes a "Final Determination" based on the same statutory and regulatory standards used in the initial determination. See id. § 656.25(f). Assuming the final determination is a denial, the last stage of the process replicates the intermediate stage: the employer (and the alien, but not the alien alone) may request a review by the Appeals Board, see id. § 656.26(a); if no such review is requested, the Final Determination becomes the Secretary's final decision, see id. § 656.25(g)(2)(iv), and the administrative remedies are deemed to have been not exhausted, see id. § 656.26(b)(2). If at any point in the process the certification application is granted, the Certifying Officer sends the certification to the employer, who in turn submits the certification to the appropriate Immigration and Naturalization Service office. See id. § 656.28.

In each of the cases on appeal, the employer filed a labor certification application on behalf of an alien in compliance with the regulations. A Certifying Officer then issued a Notice of Findings to the employer, stating that the employer had not sufficiently documented that the landscaping job at issue was full-time work (the regulations define "employment" as "permanent full-time work by an employee for an employer other than oneself," id. § 656.3), and directing the employer to provide payroll records for the last three years for all workers employed as landscapers. The employer then filed a timely rebuttal to the Notice of Findings, contending that landscaping was in fact full-time work and submitting some documentation to that effect, but declined to provide the payroll records that the Certifying Officer had requested. The Certifying Officer then issued a Final Determination that, after the employer failed to request review by the Appeals Board, became the Secretary's final decision denying the labor certification application.

Each alien then filed suit in district court, without his respective employer, contending that the Secretary's decision was arbitrary and capricious. The Secretary filed motions to dismiss in each case, arguing that the aliens failed to exhaust their administrative remedies and that their claims were moot. After consolidating the cases for purposes of the Secretary's motions to dismiss, the district court granted the motions in each case on the ground of failure to exhaust and, in the alternative, mootness.

II.

We begin with the threshold question of prudential standing. Although the government did not explicitly challenge appellants' standing, appellants accuse the government of doing so implicitly. Be that as it may, we are obliged independently to examine the issue. See Animal Legal Defense Fund, Inc. v. Espy, 23 F.3d 496, 499 (D.C.Cir.1994). We specifically reserved this question in Acupuncture Ctr. of Washington v. Dunlop, 543 F.2d 852, 858 n. 66 (D.C.Cir.1976), because the employer in that case had joined with the alien in the district court and on appeal. Two of our sister circuits, see Stenographic Machines, Inc. v. Regional Administrator, 577 F.2d 521, 527-28 (7th Cir.1978); Reddy, Inc. v. United States Dep't of Labor, 492 F.2d 538, 544 (5th Cir.1974), and a number of district courts, see, e.g., Gladysz v. Donovan, 595 F.Supp. 50, 53 (N.D.Ill.1984); Mukadam v. United States Dep't of Labor, 458 F.Supp. 164, 167 (S.D.N.Y.1978), have concluded that aliens have standing to sue.

Although we have some doubts that Congress ever contemplated aliens suing to challenge a denial of a labor certification--even though aliens are obviously regulated by the statute, see Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 396, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987)--neither the statute's text, structure, nor legislative history supplies the requisite "clear and convincing evidence" of a preclusive purpose. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); see also Shook v. District of Columbia Fin. Responsibility & Management Assistance Auth., 132 F.3d 775, 778-79 (D.C.Cir.1998). Unlike in Block v. Community Nutrition Inst., 467 U.S. 340, 348, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), for example, where the statute itself set forth a regulatory regime that omitted mention of certain parties, giving rise to an inference that those parties were precluded from litigating in court, see Block, 467 U.S. at 349, 104 S.Ct. 2450, there is no indication here that Congress itself considered the mechanism by which the Secretary of Labor would make labor certification decisions, or how (and at the request of whom) such decisions would be reviewable in the federal courts. And while the legislative history indicates that Congress intended to restrict further the admission of alien workers when it amended the statute in 1965, see S. REP. No. 748, 89th Cong., 1st Sess. (1965), reprinted in 1965 U.S.CODE CONG. & ADMIN. NEWS 3328, 3333, that does not speak to the question whether the class of aliens deserving of admission under the statute have standing to challenge in court the Secretary's decision to the contrary. The regulatory regime is completely a creation of the Labor Department's regulations, and under the Administrative Procedure Act, it is only statutes, not agency regulations, that can preclude otherwise available judicial review. See 5 U.S.C. § 701(a)(1); Gladysz, 595 F.Supp. at 53-54. In light of the presumption of judicial review, see McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986), we cannot conclude (despite our suspicions) that Congress intended to preclude the alien from challenging labor certification denials without the alien's employer. See Block, 467 U.S. at 351, 104 S.Ct. 2450 (holding that, where substantial doubt about congressional intent exists, the general presumption favoring judicial review is controlling).

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The district court held that appellants...