Sweet Life v. Dole

• Decision Date: 28 June 1989
• Docket Number: No. 88-2840,88-2840
• Citation: 876 F.2d 402
• Parties: The SWEET LIFE, Plaintiff-Appellant, v. Elizabeth DOLE, Secretary of Labor, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 402

876 F.2d 402

14 Fed.R.Serv.3d 673

The SWEET LIFE, Plaintiff-Appellant, v. Elizabeth DOLE, Secretary of Labor, et al., Defendants-Appellees.

No. 88-2840.

United States Court of Appeals Fifth Circuit.

June 28, 1989.

Bruce A. Coane, Houston, Tex., for plaintiff-appellant.

Vincent C. Costantino, U.S. Dept. of Labor, Washington, D.C., William Yahner, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, REAVLEY and HIGGINBOTHAM, Circuit Judges.

GOLDBERG, Circuit Judge:

The Sweet Life, a furniture manufacturer and retailer, appeals from the district court's decisional composition in this case, contending that the judgment below is marred by sour notes. We decline the appellant's request to rescore the district court's work. Because we detect certain prudential cacophonies in the court's composition, however, we vacate the judgment and remand for an appropriately melodic resolution of this dispute. ¹

Part I of our opinion rehearses the facts and procedural background. In Part II, we first explicate the somewhat complex administrative scheme controlling our inquiry. We then proceed to a resolution of this piece, holding that The Sweet Life has failed to exhaust its administrative remedies.

I.

On April 22, 1987, The Sweet Life ("Employer" or "The Sweet Life"), pursuant to 20 C.F.R. Secs. 621.1-3 (1988), filed applications with appellee, the Department of Labor ("DOL"), for two temporary employment certifications on behalf of two nonimmigrant aliens. ² In its application, The Sweet Life maintained that it required temporary furniture makers for two reasons: first, because an expected increase in sales due to an advertising campaign required additional labor; and second, because the Employer desired to build up a surplus stock of furniture.

According to the Employer, the labor need was temporary because the Employer did not intend to continue its stepped-up advertising, and because there would be no more need for additional furniture makers after the buildup of the surplus stock. As part of its application, the Employer submitted documents, in accordance with DOL guidelines promulgated at 49 Fed.Reg. 25837 (June 25, 1984) ("GAL 10-84"), "showing the attempts of [the Employer] to hire U.S. workers and stating that no qualified workers were available, and ... showing the terms and conditions of employment." Brief for Employer at 3.

DOL denied temporary labor certifications for both nonimmigrant aliens on June 15, 1987. (R. 28-29). The identical, preprinted denial forms state that

"The Department of Labor has made a determination on your temporary application for alien employment certification pursuant to Title 20, Code of Federal Regulations, Part 621. Final action has been taken as follows: ... A certification cannot be issued as required by Immigration and Naturalization Service regulations at 8 CFR 214.2(h)(3)(i) on the basis of information available for the following reasons...."

In a typewritten paragraph following the main preprinted portion of the form, the DOL stated its reasons for the denials of certification:

"The work as described is seasonal but not temporary in nature. In normal operations there would be a continuing need for the work after 4/88. You have not adequately documented that a need for the workers will end at that time. Therefore, certification cannot be granted. You may submit a new application at any time, in which case you should keep in mind the deficiency in the present application. As an alternative, you may appeal this determination to the Immigration and Naturalization Service." ³

The Employer filed this action in the Southern District of Texas on August 10, 1987. The Employer seeks judgments that DOL exceeded the scope of its authority, 5 U.S.C. Sec. 706(2)(C), and acted arbitrarily and capriciously, 5 U.S.C. Sec. 706(2)(A), by denying the labor certifications on the ground that the Employer failed to prove that the need for labor was temporary in nature. In addition, the Employer seeks an order compelling issuance of the certifications. See 28 U.S.C. Sec. 1361.

According to The Sweet Life, DOL is empowered only to make determinations of market conditions--that qualified workers are not available to perform the labor in question, and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed workers in the United States. Cf. 8 U.S.C. Secs. 1182(a)(14) & 1188. Determining whether a need for particular work is temporary in nature, according to the Employer, is reserved for the Immigration and Naturalization Service ("INS"). ⁴ The Employer contends that DOL usurps power reserved for INS by denying certifications at the threshold based on an evidentiary determination concerning the particular work involved, thereby avoiding an analysis of market conditions.

The parties filed cross-motions for summary judgment. DOL contended both that the decision was not ripe for review and that the Employer had failed to exhaust its administrative remedies because the Employer failed to appeal the DOL certification decision to the INS. The parties disputed whether DOL's denial of the applications was arbitrary and capricious, 5 U.S.C. Sec. 706(2)(A), and whether DOL exceeded the scope of its authority. 5 U.S.C. Sec. 706(2)(C).

The district court rejected DOL's ripeness and exhaustion arguments, stating that

"[in the DOL's] denials of the applications for the two workers, the DOL advised Plaintiff of its ability to refile, supplying additional documentation, or appeal to the INS. Plaintiff chose not to refile, but applied to the INS on behalf of [only one alien], not on behalf of [the other alien].... The court concludes that [the Employer] should not be required to further exhaust administrative remedies. Assuming [the Employer] feels it has provided all the documentation it can, a refiling with the DOL would be futile. Likewise, since [INS appeals for the two aliens would be identical, a second] appeal to the INS for the second alien would be futile.... Honig v. Doe , 108 S.Ct. 598, 606 (1988)." ⁵

Thus determining full resolution of the dispute appropriate, the district court rejected the Employer's claims that DOL had exceeded the scope of its authority and had acted arbitrarily and capriciously. First, the district court held that DOL had not exceeded its authority. The district court relied on and quoted DOL's own internal guidelines, which do not have the force of law: ⁶ "Because the availability test of U.S. workers in a given occupation can vary considerably depending upon whether a job is permanent or temporary, the Department of Labor must consider whether in its judgment the job offered to an alien is, in fact, temporary or not. 49 Fed.Reg. 25837 (June 25, 1984) [emphasis in district court's opinion]." The court added that "DOL's denial ... was thus clearly not contrary to law. The DOL did not reach the issues of the availability of United States workers or the effect on the United States work force because it determined that [the Employer] had not met the threshold requirement of documenting the work as temporary" (emphasis added). Second, the court held that DOL's denial was not arbitrary and capricious, stating that the Employer's contentions were "in fact more consistent with the creation of new permanent positions than temporary ones."

II.

The district court erred in reaching the scope of authority and evidentiary issues. On the record before us, it is apparent that the Employer has failed to exhaust its administrative remedies. We could not fully determine the propriety of DOL's actions in any event today. DOL relies in its actions on authority vested in the Immigration and Naturalization Service, and INS is not a party to this case.

We first explicate the regulatory framework below. With the schematics of the administrative plan in mind, we orchestrate our finale.

A. Administrative Framework.

The statutory and regulatory scheme allocating agency decisionmaking authority in this area displays a rather baroque cast. Delegation of decisionmaking power emanates from the baton of Congress and extends to the supporting roles of the administrative players, DOL and INS.

Statutory authority, which is not challenged by the Employer, conducts the players' executions of their parts. Under 8 U.S.C. Sec. 1101(a)(15), "The term 'immigrant' means every alien except ... an alien having a residence in a foreign country which he has no intention of abandoning ... who is coming temporarily to the United States ... to perform ... temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country...." Under 8 U.S.C. Sec. 1184 (entitled "Admission of Nonimmigrants"), "The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe...." 8 U.S.C. Sec. 1184(a). "The question of importing any alien as a nonimmigrant under section 1101(a)(15)(H) ... shall be determined by the Attorney General, after consultation with appropriate agencies of the Government, upon petition of the importing employer." 8 U.S.C. Sec. 1184(c).

Pursuant to the statute, the Attorney General has chosen to play a kind of second fiddle--or perhaps more appropriate, a kind of double bass--by promulgating regulations that lie at the bottom of the administrative framework in this case. The Employer does not challenge these regulations. "The Attorney General has delegated to the [INS] Commissioner ... authority to administer and enforce the Immigration and Nationality Act ... as prescribed and limited by 28 CFR Sec. 0.105 et seq." 8 CFR Sec. 100.2(a) (1988). 28 CFR Sec. 0.105 (1988) provides that the INS Commissioner shall exercise the authority conferred upon the...