Durable Manufacturing Co. v. DOL, No. 08-4122 (7th Cir. Aug. 18, 2009).

Durable Manufacturing Co. v. DOL, No. 08-4122 (7th Cir. Aug. 18, 2009).

A court of appeals review de novo the district court’s disposition of cross-motions for summary judgment, while construing the evidence and all reasonable inferences in favor of the party against whom the motion under consideration is made.

Summary judgment is appropriate if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.

The Supreme Court instructs that although agency determinations within the scope of delegated authority are entitled to deference, it is fundamental that an agency may not bootstrap itself into an area in which it has no jurisdiction. Accordingly, a court of appeals reviews de novo an agency’s determination of the scope of its own jurisdiction. Therefore, a court of appeals examines the text and purpose of a statute to determine whether a regulation falls within the scope of the authority the statute delegates.

Under 8 USC § 1182(a)(5)(A)(i), the Secretary of Labor must make two substantive determinations before issuing a labor certification: 1) there is an insufficient number of able, willing, qualified, and available workers (hereinafter “sufficient workers determination”); and 2) employment of the alien will not adversely affect the wages and working conditions of similarly situated workers. Of key importance is when making the sufficient workers determination, the Secretary must certify that the supply of such workers is insufficient at a specific point in time: “at the time of application for a visa and admission to the United States.” By declaring approved labor certifications indefinitely valid without any linkage to the filing of a visa petition, the earlier version of 20 CFR § 656.30(a) did not apply the statutory provision that the sufficient workers determination be made “at the time of application for a visa.” DOL’s imposition of a time limitation on the validity of a labor certification ensures that the sufficient workers determination reflects the state of the labor market at the time the anticipated employee’s application for a visa and admission is made. Assuming that DOL possessed statutory authority to promulgate regulations pertaining to labor certifications, then the amended 8 CFR § 656.30(b) is within the scope of DOL’s authority because it complies with the explicit language from 8 USC § 1182(a)(5)(A)(i)(I). In addition, the amendment is consistent with the amendment is consistent with one of the overarching purposes behind labor certifications: protection of the domestic labor force from job competition. Thus, the amended § 656.30(b) ensures that the snapshots of the labor market taken when labor certifications are approved are not stale appraisals of the labor market when the visa petitions are filed. This protects Americans who are currently able, willing, qualified, and available to fill certain skilled and unskilled positions from having to compete with aliens who were issued labor certifications (and are now applying for visas) at a time when the domestic work force was insufficient to fill such positions. Thus, the new regulation at 20 CFR § 656.30(b) advances, to some degree, the congressional purpose of protecting American workers.

In sum, the promulgation of 20 CFR § 656.30(b) was within DOL’s statutory authority because it comports with the textual mandate of 8 USC § 1182(a)(5)(A)(i)(I) for DOL to ascertain the sufficiency of workers at the time an application for a visa is made, and it furthers one of the congressional purposes behind the labor certification requirement.

A court of appeals reviews de novo the question of whether a law operates retroactively.

The Supreme Court at Landgraf v. USI Film Products, 511 U.S. 244 (1994), set forth the analytical framework for determining whether a statute is retroactive. First, a court of appeals should ask whether Congress has spoken clearly regarding whether the law should apply retroactively. When an administrative rule is at issue, the inquiry is two-fold: whether Congress has expressly conferred power on the agency to promulgate rules with retroactive effect and, if so, whether the agency clearly intended for the rule to have retroactive effect.

Unaware of any express statutory provision indicating congressional approval of retroactive rulemaking by DOL in regard to labor certifications, this court of appeals must proceed to the second Landgraf step, which is to ask whether the regulation has retroactive effect. A law is not retroactive merely because it is
applied to conduct before the law was passed or upsets expectations based in prior law. Rather, a law has retroactive effect if it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. Instead of being a simple or mechanical task, the determination of whether a law operates retroactively requires a commonsense, functional judgment about ‘whether the new provision attaches new legal consequences to events completed before its enactment. That judgment is informed by considerations of notice, reliance, and settled expectations.

The filing of an application for a labor certification is simply a preliminary step for obtaining a labor certification. Because it is not a final determination or event, no new legal consequences would affect the application as a result of the amended regulation at 20 CFR § 656.30(b).

Any right that might have been created with respect to the time period of validity of the labor certifications would have come from the earlier version of the regulation at 20 CFR § 656.30(a) promulgated by DOL. That version simply stated that approved labor certifications were valid “indefinitely.” The plaintiffs’ characterization of their labor certifications as permanently valid is unfounded. In common usage, the term “indefinite” means “having no exact limits; indeterminate in extent or amount; not clearly fixed.” Thus, labor certifications approved under the old regulation were not valid permanently, but only so long as no definite period of validity was fixed by DOL. By definition, then, any “right” that the plaintiffs may have obtained to file their approved labor certifications in support of visa petitions at any time they chose was coextensive with the duration of the “indefinite” regulation.

When DOL amended the regulation at 20 CFR § 656.30(b) essentially to establish a 180-day time limit for previously approved labor certifications, the plaintiffs’ right to the certifications’ indefinite validity ended. Therefore, upon the approval of the updated § 656.30(b), the plaintiffs did not possess any vested right that the amended regulation could impair. Similarly, any expectations that the plaintiffs had regarding the continued validity of their labor certifications were not settled due to the unfixed character of the old regulation. Accordingly, it is held that application of the new regulation at 20 CFR § 656.30(b) has no retroactive effect. Therefore, the regulation at 20 CFR § 656.30(b) falls within the scope of DOL’s statutory authority to promulgate regulations pertaining to the labor certification process. It is further held that § 656.30(b) does not operate retroactively.