United Ass'n of Journeymen and Apprentices of Plumbing and Pipe Fitting Industry of U.S. and Canada, AFL-CIO, Local Union No. 412 v. Barr, AFL-CI

Citation981 F.2d 1269
Decision Date22 December 1992
Docket NumberNo. 91-5337,LOCAL,AFL-CI,91-5337
PartiesUNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA,UNION NO. 412, et al. v. William P. BARR, et al., Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Sally M. Rider, Asst. U.S. Atty., Washington, DC, argued the cause for the appellants. With her on the briefs were Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys, Washington, DC.

Marsha S. Berzon, San Francisco, CA, argued the cause for the appellees. With her on the brief were Victor Van Bourg, San Francisco, CA, Kathy L. Krieger, Brian A. Powers, Washington, DC, and Stephen P. Berzon, San Francisco, CA.

Hamilton Loeb, Thomas A. Lorenzen, and David A. Glauber, Washington, DC, were on the brief for amicus curiae Heerema Engineering (U.S.), Inc., d/b/a Heerema Offshore Services (U.S.), Inc.

Before: MIKVA, Chief Judge, SENTELLE and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

Stated in its broadest terms, the issue presented is whether aliens, in order to perform work installing oil rigs on the outer Continental Shelf, must obtain visas of the type issued to nonimmigrant aliens entering the United States to perform temporary service or labor. Two federal statutes are involved: the Outer Continental Shelf Lands Act of 1953 ("OCSL Act"), 67 Stat. 462, as amended, 43 U.S.C. § 1331 et seq.; and the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. As suggested by the "Lands" in its title, the OCSL Act applies to "the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon." 43 U.S.C. § 1333(a)(2)(A). One of its provisions, the meaning of which the parties dispute, extends federal law to these structures. 43 U.S.C. § 1333(a)(1). We are urged to decide whether § 1333(a)(1) requires alien construction workers to comply with United States immigration laws. For the reasons given below, we believe an important threshold issue, not addressed by the district court, must be decided first. We therefore vacate the judgment and remand.

I
A.

In 1945, President Truman issued an executive order announcing that the United States "regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas contiguous to the coasts of the United States and appertaining to the United States, subject to its jurisdiction and control." Proclamation 2667, 10 Fed.Reg. 12,303, reprinted in 59 Stat. 884. The Geneva Convention of the Outer Continental Shelf later recognized the claim. 3 U.N. Doc. A/Conf. 13/L.55, T.I.A.S. No. 5578. In the meantime, jurisdictional controversies arose between the federal government and several coastal States, culminating in Supreme Court opinions holding that the federal government had "paramount" rights over the area three miles seaward, and beyond, of each State's coastline. United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947); United States v. Louisiana, 339 U.S. 699, 704, 70 S.Ct. 914, 916, 94 L.Ed. 1216 (1950); United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221 (1950). While the States therefore could not grant oil and gas leases with respect to the submerged lands off their coasts, there was doubt whether the federal government could do so under the Mineral Leasing Act of 1920, ch. 85, 41 Stat. 437.

Congress intervened in 1953 with two major pieces of legislation. The Submerged Lands Act, 43 U.S.C. §§ 1301-1315, relinquished all federal interest in the submerged lands within three geographic miles of the coast. Maryland v. Louisiana, 451 U.S. 725, 730, 101 S.Ct. 2114, 2120, 68 L.Ed.2d 576 (1981). Later in the year, Congress enacted the Outer Continental Shelf Lands Act, reiterating that the "subsoil and seabed of the outer Continental Shelf"--which consists, with certain exceptions (H.R.REP. NO. 590, 95th Cong., 1st Sess. 54 (1977)), of the submerged lands on the Shelf lying seaward of the three mile belt, 43 U.S.C. §§ 1331(a), 1301(a)(2)--"appertain to the United States and are subject to its jurisdiction, control, and power of disposition...." 43 U.S.C. § 1332(1).

In choosing a body of law to govern leasing and other activities on the outer Continental Shelf, Congress ultimately settled on a combined federal-state regime. See W. Christopher, The Outer Continental Shelf Lands Act: Key to a New Frontier, 6 STAN.L.REV. 23, 37-43 (1953). Section 1333(a)(2) applies the civil and criminal laws of adjacent States, except their tax laws, "[t]o the extent that they are applicable and not inconsistent with ... other Federal laws and regulations." Section 1333(a)(1), the provision the parties focus on here, states:

The Constitution and laws and civil and political jurisdiction of the United States are hereby extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a state: Provided, however, That mineral leases on the outer Continental Shelf shall be maintained or issued only under the provisions of this subchapter.

B.

The events apparently precipitating this lawsuit occurred in 1989, when Heerema Marine Contractors, S.A., a Dutch-owned Swiss company employing nonimmigrant aliens, started construction work for Exxon Company, U.S.A., on the outer Continental Shelf off the coast of Santa Barbara, California. The district court, in its opinion, offers little in the way of detail about Heerema's activities. (Heerema is not a party; the company's United States affiliate appeared as an amicus curiae.) We gather from the record that Heerema's contract was limited to installing platform "jackets," that is, pre-manufactured steel legs and infrastructure, to serve as the foundations for two Exxon oil platforms--the Heritage and the Harmony. Heerema transported the jackets to the outer Continental Shelf and then secured them to the seabed, working from the BALDER, a semisubmersible crane vessel owned by a Heerema affiliate. The BALDER's crew consisted of aliens. Exxon owned the jackets, but according to Heerema's counsel, Heerema had custody and control of the jackets during the installation period.

Two labor unions representing American construction workers, the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, and the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, sued the Attorney General, the Secretary of State, the Secretary of Transportation, the United States Coast Guard, and the Immigration and Naturalization Service. Citing § 1333(a)(1) of the OCSL Act, the unions claimed that the immigration laws barred alien employees from performing construction work on the outer Continental Shelf without first obtaining the appropriate visas. In their complaint, the unions mentioned the two Exxon "platforms" as examples. Complaint p 26.

Under the current version of the Immigration and Nationality Act, a nonimmigrant alien may temporarily enter the United States 1 to perform construction work if he possesses an H-2B visa. Before a consular officer may issue an H-2B visa, the employer petitioning for the alien's admission must obtain "certification from the Secretary of Labor stating that qualified workers in the United States are not available and that the alien's employment will not adversely affect wages and working conditions of similarly employed United States workers." 8 C.F.R. § 214.2(h)(6)(iv)(1); see also 8 U.S.C. § 1101(a)(15)(H)(ii)(b). 2 The basic 1952 Immigration and Nationality Act contained similar provisions, §§ 101(a)(15), 212(a)(14), 66 Stat. 163, 167, 183, which trace their lineage to the anti-"coolie" act of 1875 and the Chinese Exclusion Acts, beginning in 1882. C. GORDON & S. MAILMAN, IMMIGRATION LAW AND PROCEDURE § 20.03, at 20-11 to 20-12 (1992).

With the district court's approval, the parties agreed to stay all discovery. On cross-motions for summary judgment, the court ruled in favor of the unions, rejecting the government's position that aliens performing temporary construction work on the outer Continental Shelf were not required to obtain H-2B visas. The Immigration and Nationality Act applied to these workers, the court held, as a result of § 1333(a)(1) of the OCSL Act. United Ass'n of Journeymen v. Thornburgh, 768 F.Supp. 375 (D.D.C.1991).

II

If we confined our attention to the activities of Heerema, as best we can discern them from the sparse record before us, one problem immediately presents itself. Installation of jackets takes but a short time. When Heerema's United States affiliate sought leave to file an amicus brief in the district court, it reported that the jackets already were in place. Heerema's crane ship BALDER, we may assume, is therefore no longer operating off the coast of Santa Barbara. The Ninth Circuit confronted a similar situation in Piledrivers' Local Union No. 2375 v. Smith, 695 F.2d 390 (1982), a mandamus action against the Attorney General and the Immigration Service to compel enforcement of the Immigration and Nationality Act on the outer Continental Shelf. There, "Heerema installed an offshore platform for Texaco using the foreign crew on the Challenger I," a foreign-owned heavy lift crane ship. Id. at 392. The installation, which took less than a month, had been completed. Id. Although Heerema was no...

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