PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2515
CYBERWORLD ENTERPRISE
TECHNOLOGIES, INC.
d/b/a Tekstrom, Inc.
v.
JANET NAPOLITANO,
Secretary of the Department of Homeland Security;
ATTORNEY GENERAL ERIC H. HOLDER, JR.;
HILDA L. SOLIS,
Secretary of the Department of Labor;
MICHAEL AYTES,
Acting Deputy Director, United States
Citizenship and Immigration Services
Cyberworld Enterprise Technologies, Inc.,
Appellant
Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 1-06-cv-00402)
District Judge: Honorable Joseph J. Farnan, Jr.
Argued January 11, 2010
Before: RENDELL, AMBRO and CHAGARES,
Circuit Judges.
(Filed: April 12, 2010)
H. Ronald Klasko, Esq. [ARGUED]
Klasko, Rulon, Stock & Seltzer
1800 John F. Kennedy Boulevard
Suite 1700
Philadelphia, PA 19103
Stephen J. Neuberger, Esq.
The Neuberger Firm
2 East 7th Street, Suite 302
Wilmington, DE 19801
Counsel for Appellant
Seth M. Beausang, Esq.
Office of United States Attorney
1007 North Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899
Joan Brenner, Esq. [ARGUED]
2
Paul L. Frieden, Esq.
United States Department of Labor
Office of the Solicitor
Room N2716
200 Constitution Avenue, N.W.
Washington, DC 20210
Counsel for Appellees
OPINION OF THE COURT
RENDELL, Circuit Judge.
In this appeal, we consider whether the Secretary of
Labor retained jurisdiction to impose sanctions for violations of
H-1B visa regulations when she failed to act until eighteen
months after the time period prescribed by statute for her actions
had expired. We conclude that, under the analysis prescribed by
the Supreme Court in Brock v. Pierce County, 476 U.S. 253
(1986), the Secretary had jurisdiction to act after the deadline
passed.
Cyberworld Enterprise Technologies is a temporary
staffing company that obtains H-1B visas for its employees and
then places the employees with other companies, known as
“secondary employers.” Under federal law, Cyberworld is
required to inquire of the secondary employer whether the hiring
of an H-1B employee will cause a “United States worker” to be
laid off, or “displaced.” On August 9, 2001, the Department of
Labor received a complaint that Cyberworld had failed to
3
comply with this requirement. Although the Department was
required by law to determine within thirty days whether a
“reasonable basis” existed for the complaint, it did not make this
determination until March 20, 2003, when it found that
Cyberworld had failed to make the required inquiries on
fourteen occasions. As provided for by statute, the Secretary of
Labor assessed a $3400 penalty and notified the Attorney
General to deny Cyberworld’s H-1B applications for the ensuing
year.
After unsuccessfully challenging these sanctions through
an administrative appeal, Cyberworld brought an action in
federal district court against the Secretary and other officials
under the Administrative Procedure Act (“APA”), contending
that the Secretary was without jurisdiction to impose sanctions
because she had failed to act before the thirty-day deadline.
Cyberworld also contended that the Secretary’s action was
untimely under the doctrine of laches, that sanctions were
improper because Cyberworld had not knowingly violated the
statute, that the sanctions imposed were not authorized by
Department of Labor regulations, and that the Secretary should
have exercised her discretion not to impose sanctions. The
District Court granted summary judgment to the Government
defendants. Like the District Court, we are not persuaded by
Cyberworld’s arguments, and will affirm the District Court’s
order granting summary judgment.
4
I.
A.
The H-1B visa program is designed to allow
professionals from other countries who are employed in
“specialty occupations” to work in the United States on a
temporary basis. 20 C.F.R. § 655.700. Employers obtain H-1B
visas for their employees by filing certain applications with the
Department of Labor and the Department of Homeland Security.
See id. H-1B employees either work directly for the employer
who obtained the visa or are placed with other employers in
need of specialty labor. As a temporary staffing agency,
Cyberworld places its H-1B employees with other employers
and is therefore known as a “placing employer.” Since the bulk
of Cyberworld’s workforce consists of H-1B employees, it is
also known as an “H-1B-dependent employer.”
In order to obtain H-1B visas for their employees,
employers must file a “labor condition application” (“LCA”)
with the Department of Labor under procedures set forth by 8
U.S.C. § 1182(n), which was incorporated into the Immigration
and Nationality Act (“INA”) by the Immigration Act of 1990
(the “1990 Act”) and later amended by the American
Competitiveness and Workforce Improvement Act of 1998
(“ACWIA”). See Pub. L. No. 101-649 § 205, 104 Stat. 4978,
5021-22 (1990); Pub. L. No. 105-277 §§ 412-13, 112 Stat. 2681,
2981-642 to -650 (1998). As part of this application, an
employer must make several attestations required by
§ 1182(n)(1), including that the employer will pay H-1B
employees no less than the prevailing wage for that type of job;
5
that the employer’s current employees are not on strike; that the
employer has notified its employees of its intent to hire H-1B
workers; and that the employer has attempted to recruit
employees in the United States to fill its positions.
The attestation requirement relevant here was enacted by
the ACWIA, and requires that placing employers attest in the
LCA that they have confirmed with secondary employers that
the hiring of an H-1B employee will not displace a “United
States worker” employed by the secondary employer.
Specifically, 8 U.S.C. § 1182(n)(1)(F) provides that the LCA
must state that:
the employer will not place the
nonimmigrant with another
employer (regardless of whether or
not such other employer is an
H-1B-dependent employer)
where—
(i) the nonimmigrant
performs duties in
whole or in part at
one or more
worksites owned,
operated, or
controlled by such
other employer; and
(ii) there are indicia of
an employment
6
relationship between
the nonimmigrant
and such other
employer;
unless the employer has inquired of
the other employer as to whether,
and has no knowledge that, within
the period beginning 90 days before
and ending 90 days after the date of
the placement of the nonimmigrant
with the other employer, the other
employer has displaced or intends
to displace a United States worker
employed by the other employer.
§ 1182(n)(1)(F) (emphases added).1
The inquiry requirement is also contained in Department
1
“[T]he employer is considered to ‘displace’ a United
States worker from a job if the employer lays off the worker
from a job that is essentially the equivalent of the job for which
the nonimmigrant or nonimmigrants is or are sought.” 8 U.S.C.
§ 1182(n)(4)(B). “The term ‘United States worker’ means an
employee who—(i) is a citizen or national of the United States;
or (ii) is an alien who is lawfully admitted for permanent
residence, is admitted as a refugee under section 1157 of this
title, is granted asylum under section 1158 of this title, or is an
immigrant otherwise authorized, by this chapter or by the
Attorney General, to be employed.” § 1182(n)(4)(E).
7
of Labor regulations:
The H-1B employer is prohibited
from placing the H-1B
nonimmigrant with another
employer, unless the H-1B
employer has inquired of the
other/secondary employer as to
whether, and has no knowledge
that, within the period beginning 90
days before and ending 90 days
after the date of such placement,
the other/secondary employer has
displaced or intends to displace a
similarly-employed U.S. worker
employed by such other/secondary
employer.
20 C.F.R. § 655.738(d)(5) (emphases added). The regulations
then set forth “standards and guidance” that apply to the inquiry
obligation. Id.
The Secretary is required to certify an LCA within seven
days unless she “finds that the application is incomplete or
obviously inaccurate.” § 1182(n)(1). Thus, she is not generally
permitted to investigate the veracity of the employer’s
attestations on the LCA prior to certification. However, she is
required to investigate complaints regarding an employer’s
“failure to meet a condition” of § 1182(n)(1) or
“misrepresentation of material facts” in an LCA.
§ 1182(n)(2)(A). Such complaints “may be filed by any
8
aggrieved person or organization,” and must be “filed not later
than 12 months after the date of the failure or
misrepresentation.” Id.
The statute mandates that “the Secretary shall provide,
within 30 days after the date such a complaint is filed, for a
determination as to whether or not a reasonable basis exists to
make a finding described in subparagraph (C).” § 1182(n)(2)(B)
(emphases added).2 As relevant here, subparagraph (C) refers
to “a failure to meet a condition of paragraph . . . (1)(F),” which
sets out the inquiry obligation described above.
2
Section 1182(n)(2)(B) continues as follows:
If the Secretary determines that
such a reasonable basis exists, the
Secretary shall provide for notice of
such determination to the interested
parties and an opportunity for a
hearing on the complaint, in
accordance with section 556 of
Title 5, within 60 days after the
date of the determination. If such a
hearing is requested, the Secretary
shall make a finding concerning the
matter by not later than 60 days
after the date of the hearing. In the
case of similar complaints
respecting the same applicant, the
Secretary may consolidate the
hearings under this subparagraph
on such complaints.
9
§ 1182(n)(2)(C)(i).
Department regulations delegate the “reasonable basis”
determination to the Administrator of the Wage and Hour
Division (the “Administrator”), see 20 C.F.R. § 655.815, and
impose a thirty-day deadline for the Administrator to issue this
determination.
If the Administrator determines that
an investigation on a complaint is
warranted, the complaint shall be
accepted for filing; an investigation
shall be conducted and a
determination issued within 30
calendar days of the date of filing.
The time for the investigation may
be increased with the consent of the
employer and the complainant, or
if, for reasons outside of the control
of the Administrator, the
Administrator needs additional time
to obtain information needed from
the employer or other sources to
determine whether a violation has
occurred. No hearing or appeal
pursuant to this subpart shall be
available regarding the
Administrator’s determination that
an investigation on a complaint is
warranted.
10
20 C.F.R. § 655.806(a)(3) (emphases added).
If the Department ultimately determines that the inquiry
requirement was violated, the statute provides for monetary
penalties and a suspension of future approvals of H-1B
applications:
If the Secretary finds, after notice
and opportunity for a hearing, a
failure to meet a condition of
paragraph (1)(B), (1)(E), or (1)(F),
a substantial failure to meet a
condition of paragraph (1)(C),
(1)(D), or (1)(G)(i)(I), or a
misrepresentation of material fact
in an application—
(I) the Secretary shall
notify the Attorney
General of such
finding and may, in
addition, impose
such other
administrative
remedies (including
civil monetary
penalties in an
amount not to exceed
$1,000 per violation)
as the Secretary
determines to be
11
appropriate; and
(II) the Attorney General
shall not approve
petitions filed with
respect to that
employe r under
section 1154 or
1184(c) of this title
during a period of at
least 1 year for
aliens to be
employed by the
employer.
§ 1182(n)(2)(C)(i) (emphases added). The one-year suspension
required by § 1182(n)(2)(C)(i)(II) is known as “debarment.”3
The Department’s regulations provide for the same
sanctions:
(b) Civil money penalties. The
Administrator may assess
civil money penalties for
violations as follows:
3
Although § 1182 refers to the Attorney General as
having debarment authority, this function was subsequently
transferred by 6 U.S.C. § 271(b) from the Attorney General to
U.S. Citizenship and Immigration Services, a component of the
Department of Homeland Security.
12
(1) An amount not to
exceed $1,000 per
violation for:
(i) A violation
pertaining to
strike/lockout
(§ 655.733) or
displacement
of U.S.
workers (§
655.738);
....
(d) Disqualification from
approval of petitions. The
Administrator shall notify
the [Department of
Homeland Security]
pursuant to § 655.855 that
the employer shall be
disqualified from approval
of any petitions filed by, or
on behalf of, the employer
pursuant to section 204 or
section 214(c) of the INA
for the following periods:
(1) At least one year for
violation(s) of any of
13
the provisions
specified in
paragraph (b)(1)(i)
through (iii) of this
section;
....
20 C.F.R. § 655.810 (emphases added).
B.
On August 9, 2001, the Department’s Wage and Hour
Division received a complaint regarding Cyberworld’s
compliance with § 1182(n). The Division then investigated the
complaint, and on March 20, 2003, over nineteen months after
receiving the complaint, the Administrator issued his reasonable
basis determination, finding that Cyberworld had “failed to
make the required displacement inquiry of the secondary
employer.” App. 129. The Administrator assessed a $3400
penalty and determined that the Attorney General would be
notified of the violation so that he could impose a one-year
debarment.4
Cyberworld filed an administrative appeal. The company
conceded that it had failed to make the required displacement
inquiry with respect to each of the fourteen LCAs that it
4
At oral argument, counsel for Cyberworld stated that the
one-year period of debarment will not begin until the conclusion
of this appeal.
14
submitted between January 19, 2001, and October 1, 2002. It
also stipulated that the fourteen H-1B workers whom it placed
with secondary employers during this period “perform[ed]
duties” for the other employers and that there were “indicia of
an employment relationship” between the H-1B workers and the
other employers, thus satisfying the other elements of a
§ 1182(n)(1)(F) violation. However, Cyberworld challenged the
Secretary’s jurisdiction to act after the thirty-day deadline, as
well as her authority to impose sanctions without proof of
scienter. An Administrative Law Judge (“ALJ”) rejected these
arguments and affirmed the determination that Cyberworld was
subject to sanctions. Cyberworld then appealed to the
Department of Labor’s Administrative Review Board, which
summarily affirmed on the grounds provided by the ALJ.
Cyberworld then filed a complaint under the APA in federal
district court, seeking declaratory and injunctive relief.
The Government defendants moved for summary
judgment, and the District Court granted the motion. Relying on
the Supreme Court’s decision in Pierce County, the District
Court held that the language in § 1182(n)(2)(B) providing that
“the Secretary shall” make a determination within thirty days
does not deprive the Secretary of jurisdiction to issue such a
determination after the thirty days have expired. The District
Court also rejected Cyberworld’s argument that the Secretary’s
action was foreclosed by the doctrine of laches, since
Cyberworld had failed to show that it was prejudiced by the
Secretary’s delay. Finally, the Court concluded that the
Secretary was not required to show any knowledge on the part
of Cyberworld, and that the Secretary had correctly determined
that the one-year debarment was required by law.
15
II.
The District Court had jurisdiction over this case under
28 U.S.C. § 1331 and the APA, 5 U.S.C. §§ 702 and 706. We
have jurisdiction under 28 U.S.C. § 1291.
When reviewing a grant of summary judgment in a case
brought under the APA, we apply de novo review to the district
court’s ruling, and in turn apply the applicable standard of
review to the underlying agency decision. Concerned Citizens
Alliance, Inc. v. Slater, 176 F.3d 686, 693 (3d Cir. 1999). An
agency decision based on an issue of law that does not
“implicate[] agency expertise in a meaningful way,” like the
Secretary’s decision in this case, is subject to de novo review.
Sandoval v. Reno, 166 F.3d 225, 239-40 (3d Cir. 1999).
III.
Cyberworld’s principal argument is that because
§ 1182(n)(2)(B) states that the Secretary “shall” make a
determination within thirty days, and the word “shall” has a
mandatory meaning, the Secretary lost jurisdiction to take action
against it by failing to issue a reasonable basis determination
within thirty days of receiving the complaint against
Cyberworld.
This argument is foreclosed by the Supreme Court’s
decision in Brock v. Pierce County. In Pierce County, the Court
considered a deadline imposed on the Secretary of Labor by
another statute, the Comprehensive Employment and Training
Act (“CETA”), which authorized the Secretary to issue grants
16
for job training and employment. 476 U.S. at 255. The CETA
also authorized the Secretary to investigate complaints that
CETA funds were being misused, but “require[d] that the
Secretary ‘shall’ determine ‘the truth of the allegation or belief
involved, not later than 120 days after receiving the complaint.’”
Id. at 255-56 (quoting 29 U.S.C. § 816(b) (Supp. V 1976)
(repealed 1982)). The Secretary issued this determination with
respect to Pierce County nearly thirty months after receiving a
complaint, and thus failed to meet the 120-day deadline. Id. at
256-57. The Court of Appeals for the Ninth Circuit held that the
120-day limit was “jurisdictional,” and determined that the
Secretary thus lost his power to issue a determination after the
expiration of the 120 days. Id. at 257-59.
The Supreme Court reversed, concluding that “the mere
use of the word ‘shall’ . . . , standing alone, is not enough to
remove the Secretary’s power to act after” the deadline. Id. at
262. The Court noted that it was “most reluctant to conclude
that every failure of an agency to observe a procedural
requirement voids subsequent agency action, especially when
important public rights are at stake.” Id. at 260. It therefore
studied the language and legislative history of the CETA “to
determine whether Congress did indeed desire [the] somewhat
incongruous result” of depriving the Secretary of his authority
after the expiration of this deadline, and adopted a line of
precedent holding that a statutory time limit does not divest an
agency of jurisdiction unless the statute “specifies a
consequence for failure to comply with the provision.” Id. at
258, 259-60 (internal quotation marks and citations omitted).
After reviewing the CETA’s language and legislative history,
the Court found that there was nothing “to suggest that Congress
17
intended to impose a jurisdictional limitation on agency action.”
Id. at 262-63.
The Court also discussed and rejected several opposing
arguments. First, it distinguished Pierce County from an earlier
case, Mohasco Corp. v. Silver, 447 U.S. 807 (1980), in which
the Court had “held that an action filed by a private plaintiff
after the expiration of the 300-day time period provided in [the
Civil Rights Act of 1964] was jurisdictionally barred.” 476 U.S.
at 261. The Court noted that while “legislatures routinely create
statutes of limitations for the filing of complaints” with
jurisdictional effects, “[t]here [was] less reason . . . to believe
that Congress intended such drastic consequences to follow
from the Secretary’s failure to meet the 120-day deadline,”
because the CETA “requires him to resolve the entire dispute
within that time.” Id. This “is a more substantial task than
filing a complaint, and . . . is subject to factors beyond [the
Secretary’s] control.” Id. Moreover, unlike in Mohasco, which
involved a private right of action, “public rights are at stake, and
the Secretary’s delay . . . would prejudice the rights of the
taxpaying public.” Id.
Second, the Court rejected the argument that agencies
should be permitted to act after the expiration of a deadline
“only when agency inaction would prejudice a private citizen
seeking some sort of redress.” Id. at 261-62. The Court noted
that “the protection of the public fisc is a matter that is of
interest to every citizen, and we have no evidence that Congress
wanted to permit the Secretary’s inaction to harm that interest.”
Id. at 262.
18
Third, the Court rejected the argument that the Secretary
had also lost jurisdiction by failing to comply with
administrative regulations establishing a deadline. As with the
statutory deadline, the Court noted that the regulations “do not
specify any consequences of a failure to meet that deadline.” Id.
at 265.
The Supreme Court has since summarized the holding of
Pierce County as follows: “[I]f a statute does not specify a
consequence for noncompliance with statutory timing
provisions, the federal courts will not in the ordinary course
impose their own coercive sanction.” United States v. James
Daniel Good Real Prop., 510 U.S. 43, 63 (1993). Thus, “a
statute directing official action needs more than a mandatory
‘shall’ before the grant of power can sensibly be read to expire
when the job is supposed to be done,” and we will not construe
“a provision that the Government ‘shall’ act within a specified
time, without more, as a jurisdictional limit precluding action
later.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 161, 158
(2003).
Cyberworld attempts to distinguish this case from Pierce
County on three grounds.
First, according to Cyberworld, Pierce County applies
only when an agency is required to complete a “substantial task”
by the statutory deadline. Cyberworld notes that under the
CETA the Secretary was required to “resolve the entire dispute”
within the statutory time period, 476 U.S. at 261, but that under
§ 1182(n) she is only required to make “a determination as to
whether or not a reasonable basis exists” for finding a violation,
19
§ 1182(n)(2)(B). However, Pierce County never limited its
holding to cases where an agency must complete a “substantial
task.” Rather, it used that language to explain why a deadline
for administrative action is not comparable to a statute of
limitations in private litigation, which the Court had held in
Mohasco to be jurisdictional. In any event, similar to the actions
required by the CETA, the Administrator under § 1182(n) issues
a determination only after an investigation, must explain his
reasoning in the determination, and must prescribe remedies for
any violation that he finds. 20 C.F.R. §§ 655.806(a)(3),
655.815(c). Thus, even assuming arguendo that the nature of
the task is a relevant consideration, the “task” here is not
insubstantial.
Second, Cyberworld contends that Pierce County applies
only when an agency is acting to protect a “public right” or the
“public fisc.” In Pierce County, the Court noted that it was
especially reluctant to impose jurisdictional limitations on an
agency trying to protect public rights and the public fisc, 476
U.S. at 260, and explained that this was one reason why
Mohasco was distinguishable from actions under the CETA, id.
at 261. Here, like in Pierce County, the “rights” that the
Secretary seeks to vindicate are of a “public” nature, since she
is acting to protect the U.S. workforce from displacement by
H-1B recipients and to enforce the rules of the immigration
system.
Third, Cyberworld contends that even if the statutory
deadline did not foreclose the Secretary’s actions, the regulatory
deadline imposed by 20 C.F.R. § 655.806(a)(3) would bar her
actions. Under Pierce County, we evaluate regulatory deadlines
20
in the same manner as statutory deadlines, by determining
whether a regulation “specif[ies] any consequences of a failure
to meet [its] deadline.” 476 U.S. at 265. Nothing in § 655.806
indicates that any consequence results from a failure to issue a
determination within thirty days. As the Court of Appeals for
the Seventh Circuit has held, “absent a clear indication to the
contrary, regulatory deadlines, like statutory deadlines, provide
no remedy for their own violation.” Hendrickson v. FDIC, 113
F.3d 98, 101 (7th Cir. 1997).
Pierce County thus controls here, and requires that we
analyze the “express language” of the statute, as well as its
“structure, purpose, and legislative history,” to determine
whether Congress intended to remove the Secretary’s authority
to act after the thirty-day deadline. Barnhart, 537 U.S. at 161,
163. We find nothing in the language, structure, purpose, or
legislative history of § 1182(n) to support Cyberworld’s claim
that Congress had this intent.
The only relevant piece of statutory language cited by
Cyberworld is the word “shall.” Cyberworld correctly argues
that “shall” usually has a mandatory meaning. However, by
virtue of Pierce County, we cannot rely on the word “shall”
alone to conclude that Congress intended for the Secretary to
lose her power to act. This is especially true given that
§ 1182(n) was enacted several years after Pierce County, once
“Congress was presumably aware that [courts] do not readily
infer congressional intent to limit an agency’s power to get a
mandatory job done merely from a specification to act by a
certain time.” Barnhart, 537 U.S. at 160. Nothing else in the
statute’s language indicates that Congress intended to limit the
21
Secretary’s power after the expiration of thirty days, or to
impose any other consequence for her failure to meet the
deadline.
Cyberworld also points to the other instances of the word
“shall” in § 1182(n)(2)(B), and argues that if we allow the
Secretary to exercise jurisdiction after the statutory deadline has
passed, we must construe the other instances of “shall” in a
similarly permissive manner. If “shall” is not mandatory, it
argues, then the Secretary would not be required to give notice
of her “determination to the interested parties and an opportunity
for a hearing,” or to “make a finding” after the hearing.
§ 1182(n)(2)(B). This argument overstates the impact of Pierce
County. Pierce County does not deprive the word “shall” of its
mandatory force. The Secretary is still required by
§ 1182(n)(2)(B) to make a reasonable basis determination, to
give notice of that determination to interested parties, to hold a
hearing if requested, and then to make a further determination
after the hearing. Pierce County does, however, prevent us from
reading the word “shall” so expansively as to mean that the
Secretary was forbidden from imposing sanctions because she
failed to comply with the statute’s “procedural requirement” that
she act within thirty days. 476 U.S. at 260, 258.
Cyberworld also cites a statement in the legislative
history of the 1990 Act that “the Secretary of Labor is to
investigate and determine within thirty days if there is
reasonable cause” for finding a violation, H.R. Rep. No. 101-
723 pt.1, at 65 (1990) (emphasis added), and argues that the
phrase “is to” demonstrates that Congress intended for the word
“shall” to have a mandatory meaning. Even without relying on
22
this legislative history, we agree that the word “shall” has a
mandatory meaning. As in Pierce County, however, this
legislative history does not “suggest that Congress intended to
impose a jurisdictional limitation on agency action” occurring
after the thirty-day period. 476 U.S. at 262-63.
Indeed, the legislative history and purpose of § 1182(n)
offer no support for Cyberworld’s position. A report of the
House Committee on the Judiciary regarding the 1990 Act,
which first implemented the complaint-driven process and
thirty-day timetable that are still in place today, demonstrates
that Congress was concerned with remedying the prior H-1B
system, which had “neither serve[d] business needs nor
protect[ed] the domestic labor force,” in part because of lengthy
processing delays in issuing the visas. H.R. Rep. No. 101-723
pt. 1, at 61 (1990). Although the Committee report refers to the
thirty-day deadline, it does not explain why the reasonable basis
determination must be issued so quickly. Id. at 65-66. When
the ACWIA later added several provisions regarding the
displacement of U.S. workers, including the inquiry requirement
at issue here, Congress emphasized its goal of “ensur[ing] that
companies will not replace American workers with foreign born
professionals,” such as by “replacing a particular laid-off U.S.
worker with a particular covered H-1B” worker. 144 Cong.
Rec. S12741, S12749-50 (Oct. 21, 1998) (statement of Sen.
Abraham). Again, however, the legislative history is silent as to
the reasons for applying the thirty-day deadline to reasonable
basis determinations regarding the inquiry requirement. Id. at
S12752.
Thus, while the 1990 Act made the investigative process
23
complaint-driven and imposed deadlines to eliminate
unnecessary bureaucratic processing, the deadline was certainly
not a goal of the statute. The same is true of the ACWIA’s
application of this deadline to investigations of the inquiry
requirement. To the contrary, a primary goal of the 1990 Act
and the ACWIA was to prevent displacement of the American
workforce. Although Congress was cognizant of the impact of
government procedures on employers and workers, we can find
no evidence that it intended to make the interests of H-1B
employers paramount to the enforcement of regulations
designed to prevent displacement. This is especially true given
the federal government’s strong interest, which is not even
shared with the states, in regulating immigration. If the federal
government were prevented from acting after the thirty-day
deadline, the statute’s displacement requirements would be left
essentially unregulated. We see no indication that Congress
intended such a drastic result.
We agree with Cyberworld that nineteen months is a long
period of time for an agency to take before acting when the
governing statute specifies that the agency “shall” act within
thirty days. Nonetheless, since Congress did not prevent the
Secretary from acting after the deadline had expired, Pierce
County dictates the conclusion that the Secretary had
jurisdiction to act when she did.
IV.
Cyberworld also argues that the doctrine of laches bars
the imposition of sanctions because of the Secretary’s nineteen-
month delay in issuing the determination, that it was entitled to
24
discovery to establish facts supporting its laches argument, and
that summary judgment on the issue of laches was premature in
the absence of such discovery. We find these arguments
unpersuasive.
The doctrine of laches bars an action only when the delay
in bringing the action both caused prejudice and was
inexcusable. Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d
212, 226 (3d Cir. 2007). We review a district court’s
determination regarding laches for abuse of discretion. Id. We
also review a district court’s discovery orders for abuse of
discretion, and will not disturb such orders without a showing of
actual and substantial prejudice. Mass. Sch. of Law at Andover,
Inc. v. Am. Bar Ass’n, 107 F.3d 1026, 1032 (3d Cir. 1997);
Hewlett v. Davis, 844 F.2d 109, 113 (3d Cir. 1988).
Cyberworld urges that it experienced two types of
prejudice resulting from the Secretary’s delay: the harm
inherent in being required “to operate in a state of uncertainty
for an unduly lengthy period of time,” and the possibility that its
employees and other witnesses would remember events less
clearly because of the passage of time. Appellant’s Br. at 38.
Both are speculative and lack any support in the record.
Cyberworld has offered no evidence to substantiate its claim that
it was harmed by either of these potential forms of prejudice,
and in light of Cyberworld’s concession in the administrative
proceedings that it violated the inquiry requirement on fourteen
occasions, we are skeptical that any such evidence could have
been produced. Moreover, we do not understand how discovery
would have been of use to Cyberworld. If it wished to introduce
evidence that it had been harmed by “operat[ing] in a state of
25
uncertainty,” it could have done so by producing its own
business records. It could also have guarded against any
memory loss by having its employees record their knowledge in
affidavits. Since Cyberworld has not shown prejudice from the
Secretary’s delay, there was no genuine issue of fact to preclude
the entry of summary judgment regarding the issue of laches.5
Nonetheless, Cyberworld contends that it was entitled to
discovery from the Government regarding the reasons for the
Secretary’s delay, ostensibly to show that the delay was
“inexcusable.” Even if Cyberworld had been able to make such
a showing, however, discovery would not have enabled it to
show prejudice, and its laches claim would still have failed.
Thus, Cyberworld has not demonstrated that discovery would
have allowed it to “present facts essential to justify its
opposition.” Fed. R. Civ. P. 56(f). We therefore find no abuse
of discretion in the District Court’s denial of further discovery.6
5
Cyberworld invokes our decision in Lehigh Valley
Manpower Program v. Donovan, 718 F.2d 99 (3d Cir. 1983), to
argue that “prejudice is not a requirement for a time limit to be
enforced.” Not only did Lehigh Valley not address the elements
of laches, but we have previously recognized that it was
overruled by the Supreme Court in Pierce County. See City of
Camden v. U.S. Dep’t of Labor, 831 F.2d 449, 451 (3d Cir.
1987).
6
Cyberworld also contends that evidence produced in
discovery could have bolstered its argument that the Secretary
did not comply with the thirty-day deadline in 20 C.F.R.
§ 655.806(a)(3), since that regulation allows extensions to the
26
V.
Cyberworld contends that sanctions can only be imposed
under § 1182(n)(2)(C)(i) if there is scienter—that is, if the
failure to inquire was knowing or intentional—and that it was
therefore improperly sanctioned because it lacked such
knowledge. However, § 1182(n)(2)(C)(i) contains no such
requirement, and we see no basis for finding that Congress
intended to include one in the statute.
Cyberworld was sanctioned under § 1182(n)(2)(C)(i),
which provides for sanctions for “a failure to meet a condition
of paragraph . . . (1)(F).” Paragraph (1)(F), in turn, provides that
employers will not place H-1B visa recipients with another
employer “unless the employer has inquired of the other
employer as to whether, and has no knowledge that . . . , the
other employer has displaced or intends to displace a United
States worker employed by the other employer.”
§ 1182(n)(1)(F). Thus, an employer can effectuate a placement
only if both conditions are met. Conversely, sanctions must be
imposed under paragraph (2)(C)(i) for a violation of paragraph
(1)(F) either if the placing employer fails to inquire of the
secondary employer about displacement or if, even though the
placing employer did make the inquiry, it had knowledge
(including independently) that the secondary employer “has
deadline only when the delay is caused by reasons “outside of
the control of the Administrator.” In light of our holding that
the Secretary’s failure to comply with this deadline did not
divest her of jurisdiction, however, such discovery could not
have helped Cyberworld’s case.
27
displaced or intends to displace a United States worker.” Since
Cyberworld concedes that it did not inquire about displacement,
it clearly failed to fulfill one of the two conditions. Here, the
Secretary sanctioned the placing employer for failing to make
the displacement inquiry (rather than for knowing that
displacement would occur); the statute only required her to show
that the inquiry was not made. She need not have determined
whether there was an actual displacement, or whether the
placing employer had any knowledge (independent or
otherwise) regarding displacement.
Cyberworld urges a different reading. Cyberworld
argues that since Congress included a scienter requirement in a
different section, namely § 1182(n)(2)(E)(i), which provides for
sanctions when a secondary employer “has displaced . . . a
United States worker” and the “placing employer . . . knew or
had reason to know of such displacement” (emphases added),
Congress must have also intended scienter to be required in
§ 1182(n)(2)(C)(i). However, the presence of this language in
a paragraph different from the paragraph under which
Cyberworld was sanctioned actually undermines Cyberworld’s
position, since it demonstrates that Congress knew how to
impose a scienter requirement when it wanted to do so. Indeed,
by including a scienter requirement in paragraph (n)(2)(E)(i),
which applies in instances of actual displacement rather than
failures to inquire about displacement, Congress protected an
entity like Cyberworld from being sanctioned for displacement
resulting from the actions of third parties without its knowledge.
By contrast, Cyberworld is being sanctioned for failing to take
an action that was entirely within its control.
28
Cyberworld also contends that compliance with the
inquiry requirement does not serve the statute’s goal of
preventing displacement because secondary employers can still
place Cyberworld employees with “tertiary employers” without
Cyberworld’s knowledge, even if an inquiry is made. Thus,
tertiary placements could still result in displacement, and this
displacement would not be prevented by Cyberworld’s inquiry
of the secondary employer. Although Cyberworld may be
correct that the statutory scheme will not always prevent
displacement, that possibility does not justify our rewriting
§ 1182(n) so as to eliminate either the inquiry requirement or the
Secretary’s authority to sanction violations of the requirement.
VI.
As a sanction for violating the inquiry requirement, the
Secretary notified the Attorney General that Cyberworld was
disqualified from submitting H-1B petitions for a period of one
year, which is commonly known as “debarment.” Cyberworld
argues that Department of Labor regulations do not authorize
debarment for failures to inquire about displacement. This
argument has two prongs. First, Cyberworld contends that the
regulations that address debarment, 20 C.F.R. § 655.810(b) and
(d), apply only to instances of actual displacement, not to
failures to inquire about displacement. Second, Cyberworld
contends that 20 C.F.R. §§ 655.855(a) and (c), which were cited
by the Administrator’s determination, do not authorize the
sanctions imposed and therefore could not be invoked to
sanction Cyberworld.
As an initial matter, the Secretary is directly authorized
29
by § 1182(n) itself to sanction violations of the inquiry
requirement. Debarment is not only permitted, it is specifically
required by § 1182(n)(2)(C)(i), which states that when the
Secretary finds that an H-1B employer failed to satisfy the
inquiry requirement “the Secretary shall notify the Attorney
General of such finding” and “the Attorney General shall not
approve [H-1B] petitions filed with respect to that employer . . .
during a period of at least 1 year.” This alone gave the
Secretary the authority to sanction Cyberworld.
Contrary to Cyberworld’s contention, debarment is also
required by 20 C.F.R. § 655.810(b) and (d). Section 655.810(d)
requires debarment for violations “specified in paragraph
(b)(1)(i).” Section 655.810(b)(1)(i), in turn, refers to
“violation[s] pertaining to . . . displacement of U.S. workers
(§ 655.738).” Finally, § 655.738 describes all of the
displacement-related violations, including, in § 655.738(d)(5),
the failure to make displacement inquiries. Cyberworld
contends that, because § 655.810(b)(1)(i) refers to
“displacement of U.S. workers (§ 655.738)” without referring to
“inquiries about displacement,” it only authorizes sanctions
when actual displacement has occurred. However, it is clear
that § 655.810(b)(1)(i) refers to § 655.738 in its entirety, and
uses the phrase “displacement of U.S. workers” only as a
shorthand to refer to the numerous displacement-related
violations described in that regulation. Thus, § 655.810(b)(1)(i)
authorizes sanctions for failing to inquire about displacement,
which is described in § 655.738(d)(5).7
7
Cyberworld also argues that because § 655.810(b) and
(d) were not specifically cited in the Administrator’s
30
Cyberworld is correct that § 655.855(a) and (c), despite
being cited in the Administrator’s determination, do not clearly
authorize debarment. Section 655.855 provides as follows:
(a) The Administrator shall
notify the [Department of
Homeland Security
(“DHS”)] and [Department
of Labor Employment and
Training Administration] of
the final determination of
any violation requiring that
the DHS not approve
petitions filed by an
employer. The
Administrator’s notification
will address the type of
violation committed by the
employer and the
appropriate statutory period
for disqualification of the
determination, Cyberworld should not have been sanctioned
under those regulations. However, the determination did state
that Cyberworld had “failed to make the required displacement
inquiry of another employer . . . as required under 20 C.F.R.
§ 655.738.” App. 132. As noted above, § 655.738 describes all
displacement-related violations, and this statement was therefore
sufficient to give Cyberworld notice of “the determination of the
Administrator and the reason or reasons therefor,” as required
by 20 C.F.R. § 655.815(c)(1).
31
employer from approval of
petitions. Violations
requiring notification to the
DHS are identified in
§ 655.810(f).
....
(c) The DHS, upon receipt of
notification from the
Administrator pursuant to
paragraph (a) of this section,
shall not approve petitions
filed with respect to that
employer under sections 204
or 214(c) of the INA (8
U.S.C. 1154 and 1184(c))
for nonimmigrants to be
employed by the employer,
for the period of time
provided by the Act and
described in § 655.810(f).
§ 655.855 (emphases added). Thus, these paragraphs require
debarment only for “[v]iolations . . . identified in § 655.810(f),”
and “for the period of time . . . described in § 655.810(f).”
§ 655.810(a), (c). Yet § 655.810(f) does not identify any
violations or set forth any time periods; instead, it describes the
procedure for paying monetary penalties assessed by the
32
Administrator.8 The reference to § 655.810(f) thus appears to
8
Section 655.810(f) provides as follows:
The civil money penalties, back
wages, and/or any other
remedy(ies) determined by the
Administrator to be appropriate are
immediately due for payment or
performance upon the assessment
by the Administrator, or upon the
decision by an administrative law
judge where a hearing is timely
requested, or upon the decision by
the Secretary where review is
granted. The employer shall remit
the amount of the civil money
penalty by certified check or money
order made payable to the order of
“Wage and Hour Division, Labor.”
The remittance shall be delivered or
mailed to the Wage and Hour
Division office in the manner
directed in the Administrator’s
notice of determination. The
payment or performance of any
other remedy prescribed by the
Administrator shall follow
procedures established by the
Administrator. Distribution of back
wages shall be administered in
accordance with existing
33
be erroneous.9 As discussed above, however, 8 U.S.C.
§ 1182(n)(2)(C)(i) and 20 C.F.R. §§ 655.738 and 655.810
provide sufficient authority for the debarment sanction,
notwithstanding this error.
VII.
Cyberworld also argues that the Secretary should have
exercised her discretion not to impose the debarment sanction.
The Government, on the other hand, maintains that because
§ 1182(n)(2)(C)(i) states that “the Secretary shall notify the
Attorney General of such finding,” and that “the Attorney
General shall not approve petitions filed with respect to that
employer . . during a period of at least 1 year,” the Secretary
does not have any such discretion.
Cyberworld relies on Asika v. Ashcroft, 362 F.3d 264 (4th
Cir. 2004), and Heckler v. Chaney, 470 U.S. 821 (1985), for the
proposition that the Government can exercise discretion even
when a statute uses apparently mandatory language. However,
these cases stand, at most, for the proposition that the
Government could choose to exercise discretion even where a
statute does not specifically refer to its discretionary authority.
They do not say that a court can require the exercise of
discretion when a statute contains a mandatory penalty. The
procedures established by the
Administrator.
9
It appears that the reference in § 655.855(a) and (c)
should be to § 655.810(d) instead of § 655.810(f).
34
Government has correctly read § 1182(n)(2)(C)(i) to foreclose
its exercise of discretion, and neither Asika nor Heckler provides
authority for a court to compel the Government to exercise
discretion when a statute’s language indicates that no such
discretion exists.
Cyberworld argues, however, that if we find that the
Secretary retained jurisdiction after the thirty-day deadline
despite the use of the word “shall” in § 1182(n)(2)(B), we must
allow the Government to escape the mandatory force of the
“shall” in § 1182(n)(2)(C)(i)(I). That is, the two instances of the
word “shall” should operate in tandem; if the Government can
ignore the binding force of “shall” with respect to the thirty-day
deadline, then it should not be bound by the word “shall” in the
imposition of sanctions. In the latter context, however, there is
no Supreme Court precedent compelling a certain interpretation
of the statute, and the Government is not seeking to avoid
compliance with its literal terms. Our interpretation of the word
“shall” in § 1182(n)(2)(B) thus does not govern our
interpretation of the same word as it is used in
§ 1182(n)(2)(C)(i). See Official Comm. of Unsecured Creditors
of Cybergenics Corp. v. Chinery, 330 F.3d 548, 559 (3d Cir.
2003) (en banc) (noting that the presumption “‘that identical
words used in different parts of the same act are intended to
have the same meaning’” may be overcome when “‘there is such
variation in the connection in which the words are used as
reasonably to warrant the conclusion that they were employed
in different parts of the act with different intent’” (quoting Atl.
Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433
(1932))).
35
We agree with Cyberworld that a one-year debarment
appears to be a harsh sanction for a company like Cyberworld,
which depends on H-1B visa applications for its business,
especially when the sanction is being imposed for failing to
inquire about possible displacement rather than for actual
displacement. However, this is an issue for Congress to
consider, not the courts.
VIII.
For the reasons stated above, we will affirm the District
Court’s order granting summary judgment to the Government
defendants.
36