Lewis-Mota v. Secretary of Labor
| Decision Date | 08 February 1972 |
| Docket Number | No. 71 Civ. 469.,71 Civ. 469. |
| Parties | Ignacio F. LEWIS-MOTA et al., Plaintiffs, v. The SECRETARY OF LABOR, Defendant. |
| Court | U.S. District Court — Southern District of New York |
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Antonio C. Martinez, New York City, for plaintiffs.
Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York by Stanley H. Wallenstein, and Joseph P. Marro, Special Asst. U. S. Attys., of Counsel, for defendant.
The plaintiffs, aliens, are visa applicants seeking to enter the United States for the purpose of performing labor. Under the Immigration and Nationality Act, § 212(a) (14), 8 U.S.C. § 1182(a) (14) (the Act), they are ineligible to receive visas and are excluded from admission into the United States unless at the time of application for a visa and admission there are not sufficient qualified workers in the United States willing to perform the work of which the alien is capable and unless the employment of such aliens would not adversely affect wages and working conditions of workers in the United States similarly employed.
The determination and certification of the conditions for eligibility of such aliens for visas to enter the United States is required by the Act to be made by the Secretary of Labor to the Secretary of State and to the Attorney General.
The plaintiffs bring this class suit to obtain a judgment declaring invalid the February 7, 1970 Directive (the "Directive") of the Secretary of Labor which (1) required proof of a job offer in the United States before the Secretary would certify the existence of insufficient domestic labor for occupations in which the plaintiffs seek employment and (2) which phased out after a year the then outstanding precertifications. A judgment is also sought declaring that the labor precertifications previously obtained which have expired under the terms of the Directive should be revalidated as of the date of original issue.
The underlying thesis of the suit is that the Secretary did not comply with the publication requirements of the Administrative Procedure Act, 5 U.S.C. §§ 552 and 553, in effecting the change in procedure and modifying the effect of existing precertifications.
Under the authority of § 212(a) (14) of the Act, 8 U.S.C. § 1182(a) (14), and to reduce delay in processing an alien's request for visa, the Secretary of Labor by a regulation dated January 25, 1967 made a determination on the state of the domestic labor market in three schedules (A, B and C) setting forth categories of employment.1 Schedule A and C occupations were found and certified to be in short labor supply. Schedule B described occupations for which no such finding and certification could be made.
Aliens who applied for qualification and established their suitability for occupations described in Schedules A and B were not required to submit a specific job offer from an employer in the United States in order to obtain provisional certification. Schedule C differed however from Schedule A in that Schedule C described occupations found to be in short labor supply generally, but not nationally, and was to be reviewed continuously to be kept current. The regulation establishing Schedule C, however, made no mention of any period of time during which "certifications" of applicants thereunder would continue to be valid.
On the other hand, aliens whose occupations were not included on any schedule were required to submit proof of a specific job offer in the United States (form ES-575B: Job Offer for Alien Employment)), in support of their application for a labor certification, and were required to submit form ES-575A (Statement of Qualifications of Alien), on which bases the Secretary of Labor's findings as to availability of American workers and adverse effect would then be made.
On January 23, 1969, the Secretary of Labor promulgated a new regulation which established a new Schedule C, Precertification List, and thereby abolished the old Schedule C. 29 C.F.R. 60.3(c) (January 23, 1969); Notice of Proposed Rulemaking, 33 Fed.Reg. 17244 (Nov. 21, 1968). The new Schedule C, Precertification List, set forth occupations and geographic locations for which a "precertification" would be issued. Although the new Schedule C was not published in the Federal Register, the new regulation spelled out the nature of the new list, and it provided specifically that changes and deletions from the list would be made as required by the condition of the labor market.
In keeping with the procedure under the former schedule, an alien whose occupation was on the new Schedule C, Precertification List, was not required to submit proof of a specific job offer in support of his application for labor certification since the Secretary of Labor had already made a determination under § 212(a) (14) of the Act, 8 U. S.C. § 1182(a) (14) that domestic workers were unavailable and that the alien's employment would not adversely affect the wages and working conditions of workers in the United States.
The plaintiffs were duly "certified" or precertified under either the old Schedule C or Schedule C, Precertification List, as the case may be (hereafter "certification" and precertification, will be referred to generally as precertifications).
On February 9, 1970, because of changes in the conditions of the domestic labor market, the Secretary of Labor issued a directive suspending the entire Schedule C, Precertification List, and providing that pending precertifications would be valid only for a year from date of the precertification or until June 30, 1970, whichever was later. The Directive made the previous blanket findings of unavailability of domestic workers and of lack of adverse effect no longer automatically applicable to the listed occupations. Advance notice of this suspension was not published in the Federal Register.
The suspension of the Schedule C, Precertification List, as mentioned above, required alien workers seeking admission to submit proof of a job offer in the United States before the Secretary of Labor's finding under § 212(a) (14) of the Act, 8 U.S.C. § 1182(a) (14), would be made. Aliens who had already been precertified under Schedule C, but had not obtained immigration visas, retained their precertification for a year from the date of precertification or June 30, 1970, whichever date occurred later. If they had not obtained a visa by then, revalidation of the labor precertification was required and in order to obtain this, proof of a job offer in the United States was necessary.2
Although the Directive suspended the Schedule C, Precertification List, and required applicants to submit proof of a job offer to obtain a certification, the submission of proof of a job offer by the plaintiffs and those in their class would, however, restore their original priority positions in line for a visa. The new requirement for revalidation did not operate to prejudice plaintiffs' position in the line for visa processing.
The rule that outstanding precertifications made pursuant to the Schedule C, Precertification List, would be valid for only one year after the date of certification (or June 30, 1970, if later) and that revalidation would be required after that period was not published until February 4, 1971. 36 Fed.Reg. 2464. By this time, the validity of the precertifications of the plaintiffs had expired under the terms of the Directive.3
However, before that publication, each of the plaintiffs had received a communication from their respective consulates announcing the expiration at that time of his or her precertification and indicating the procedure for revalidation.
Plaintiffs contend that because the Directive had a substantial impact on the status conferred by their precertifications, the "rule" which it announces is a "substantive rule" and obliges the Secretary to follow the rulemaking procedures in 5 U.S.C. § 553, especially subsections (b) and (d) relating to publication, and the publication requirement in 5 U.S.C. § 552(a) (1).
Section 553 of Title 5 provides in pertinent part:
Whether publication is mandated has been tested by some courts from the viewpoint of the impact of the questioned action, Pharmaceutical Manufacturers Ass'n v. Finch, 307 F.Supp. 858 (D.Del.1970); National Motor Freight, Traffic Ass'n v. United States, 268 F. Supp. 90 (D.D.C.1967), affirmed without opinion, 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19 (1968); Texaco, Inc. v. Federal Power Commission, 412 F.2d 740 (3d Cir. 1969).
Pharmaceutical Manufacturers Ass'n, supra, involved a regulation of the Federal Drug Administration which described how much evidence would amount to "substantial evidence" of effectiveness required under the relevant Act for approval of a new drug. The Court stated that "the basic policy of Section 4 of the Administrative Procedure Act, 5 U.S.C. § 553 at least requires that when a proposed regulation of general applicability has a substantial impact on the regulated industry ... notice and opportunity for comment should first be provided." Upon finding that the regulation in question had a substantial impact on the members of the plaintiff-association, the Court invalidated the regulation as not having been adopted pursuant to...
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