Lewis-Mota v. Secretary of Labor

• Decision Date: 15 November 1972
• Docket Number: No. 99,Docket 72-1533.,99
• Citation: 469 F.2d 478
• Parties: Ignacio F. LEWIS-MOTA et al., Plaintiffs-Appellants, v. The SECRETARY OF LABOR, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

469 F.2d 478 (1972)

Ignacio F. LEWIS-MOTA et al., Plaintiffs-Appellants, v. The SECRETARY OF LABOR, Defendant-Appellee.

No. 99, Docket 72-1533.

United States Court of Appeals, Second Circuit.

Argued September 28, 1972.

Decided November 15, 1972.

Antonio C. Martinez, New York City, for plaintiffs-appellants.

Stanley H. Wallenstein, Sp. Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., Joseph P. Marro, Sp. Asst. U. S. Atty., of counsel), for defendant-appellee.

Before HAYS, OAKES and TIMBERS, Circuit Judges.

OAKES, Circuit Judge:

This appeal is from an order dismissing the complaint. 337 F.Supp. 1289 (S.D.N.Y.1972). It raises not insignificant questions concerning the applicability of the Administrative Procedure Act, 5 U.S.C. § 551 et seq., to certain procedures of the Secretary of Labor in connection with the entry of aliens for the purpose of performing labor in the United States. A complete description of the factual background of this case is found in the district court's opinion and it need only be summarized here.

This is a class action brought by aliens seeking to enter and reside in the United States as permanent residents. Such aliens not only need a visa for entry, but both at the time of application for a visa and at the time of admission there must be a certification by the Secretary of Labor that (a) there are insufficient "able, willing, qualified and available" domestic workers and that (b) the alien's admission "will not adversely affect the wages and working conditions" of similarly employed American workers. Immigration and Nationality Act § 212(a) (14), 8 U.S.C. § 1182(a)(14).

To simplify the determination involved, the Secretary of Labor has in the past from time to time published "schedules" listing certain occupational categories. One such schedule known as Schedule C originally listed occupations found to be in short labor supply generally, but not nationally, and was subject to continuous review.¹ An occupation listed on the original Schedule C exempted an alien applicant from showing that he had a specific job offer and submitting a statement of his qualifications before he would be eligible to receive certification by the Secretary.

On January 23, 1969, a new Schedule C, setting forth a "Precertification List" and abolishing the original Schedule C was established after due notice.² See 29 C.F.R. § 60.3(c) (1969). While changing other aspects of the original Schedule C, the new Schedule C continued the practice of exempting aliens engaged in listed occupations and destined for listed geographic areas from the requirement of showing a specific job offer. It provided specifically that changes and deletions from the list would be made as required. Appellants were either certified under the old Schedule C or precertified under the new Schedule C. For ease of comprehension, like the district court we will adopt the term "precertification" to refer to that certification at the time of application for a visa as opposed to a certification at the time of admission. Precertification gave appellants priority over other applicants in seeking visa approval.

On February 9, 1970, the Secretary of Labor, without first publishing in the Federal Register, issued a Directive which suspended the entire Schedule C precertification list and provided that previously issued precertifications would be valid only for a year from the date of their issue or until June 30, 1970, whichever were later. These appellants' precertifications expired in June and July of 1970, and each of them was notified by his respective consulate of such expiration and the procedure for revalidating his certification by way of submitting proof of a job offer was explained to him. Revalidation in turn would restore an alien's original priority position in the line for visa processing.

The Directive suspending the said Schedule C precertification list was not in fact published in the Federal Register until almost a year after its issuance, February 4, 1971. 36 Fed.Reg. 2462 (1971). Appellants argue that the omission of the Secretary to publish the suspension Directive was contrary to the Administrative Procedure Act and particularly 5 U.S.C. § 553(b), (d), and 5 U.S.C. § 552(a)(1). The court below held that § 553³ did not require publication on the ground that the test for applicability is whether the particular directive in question is a "legislative rule" and that the issuance of the Directive in question was not a legislative rule but rather a "fact determination regarding the domestic labor market . . . ." 337 F.Supp. at 1294. As will be seen below, we disagree.

The district court also held that the communication from the appellants' consulates announcing expiration and indicating the procedure for revalidation at the time of the expiration of their precertifications was actual notice of the terms of the Directive and that such notice was timely because there was no showing of prejudice from the delay, especially in view of the fact that the appellants were previously aware that their status was subject to a change in the labor market. Accordingly the court found that Section 552 of Title 5⁴ did not require publication of the Directive. Our determination of appellants' § 553 claims makes review of this finding unnecessary.

Under 5 U.S.C. § 551(4) a rule is defined as "an agency statement of general or particular applicability and future effect designed to implement . . . law or policy . . . ." Under 5 U.S.C. § 553(b), (c) and (d) 30 days' notice of proposed substantive rule making and an opportunity for interested persons to submit written data are required. None of the exceptions to the publication requirement are applicable here. The Directive did not relate to "agency management" under the exception in 5 U.S.C. § 553(a)(2). It was not an "interpretative rule," or a "general statement of policy" within the exceptions of 5 U.S.C. § 553(b) (A). While the Secretary strenuously argues that he was merely announcing "a general statement of agency procedure or practice" within § 553(b)(3)(A), the label that the particular agency puts upon its given exercise of administrative power is not, for our purposes, conclusive; rather it is what the agency does in fact. See Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 416, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942).

We look then to what the Directive in fact did. We find that it changed existing rights and obligations by requiring aliens of the class of appellants to submit proof of specific job offers as well as a statement of their qualifications; it thereby made it more difficult for employers to fill vacancies in the occupations no longer precertified. By virtue of this substantial impact both upon the aliens and employers, notice and opportunity for comment by the public should first be provided. See Pharmaceutical Manufacturers Association v. Finch, 307 F.Supp. 858, 863 (D.Del.1970); National Motor Freight Traffic Association v. United States, 268 F.Supp. 90, 96 (D.D.C.1967) (3-judge court), aff'd per curiam, 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19 (1968); Seaboard World Airlines, Inc. v. Gronouski, 230 F.Supp. 44, 46 (D.D.C.1964). As was stated in a similar case arising under the Natural Gas Act, the publication requirement of § 553 "enables the agency promulgating the rule to educate itself before establishing rules and procedures which have a substantial impact on those regulated." Texaco, Inc. v. FPC, 412 F.2d 740, 744 (3rd Cir. 1969) (order requiring...