United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 1998 Decided October 6, 1998
No. 97-5276
Roberto De Jesus Ramirez, et al.,
Appellants
v.
Robert B. Reich, Secretary of Labor,
Appellee
Consolidated with
97-5277, 97-5278, 97,5279, 97-5280, 97-5281
---------
Appeal from the United States District Court
for the District of Columbia
(96cv02463, 96cv02740, 96cv02741, 97cv00101,
97cv00102, 97cv00103)
Michael E. McKenzie argued the cause and filed the briefs
for appellants.
Lisa H. MacPhee, Special Assistant United States Attor-
ney, argued the cause for appellee. With her on the brief
were Wilma A. Lewis, United States Attorney, and R. Craig
Lawrence, Assistant United States Attorney.
Before: Silberman, Henderson, and Randolph, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge: Appellants are six aliens who
challenged as arbitrary and capricious the Secretary of La-
bor's denial of labor certification applications filed by their
employers.1 The district court granted the Secretary's mo-
tion to dismiss on the ground that the aliens failed to exhaust
their administrative remedies and, in the alternative, that
their claims were moot. We affirm the district court's dis-
missal of appellants' claims, although on different grounds
than those on which the district court relied.
I.
The Immigration and Nationality Act includes among the
classes of "excludable aliens" (i.e., aliens ineligible to receive
visas or be admitted to the United States) those aliens
seeking entrance to the United States for the purpose of
performing skilled or unskilled labor. 8 U.S.C.
s 1182(a)(5)(A)(i) (1994). An alien avoids this classification
only if the Secretary of Labor determines and certifies to the
Secretary of State and the Attorney General that "there are
not sufficient [American] workers who are able, willing, quali-
fied, and available" and that "the employment of such alien
will not adversely affect the wages and working conditions of
workers in the United States similarly employed." 8 U.S.C.
s 1182(a)(5)(A)(i)(I), (II).
The Department of Labor has promulgated a comprehen-
sive set of regulations governing the issuance of labor certifi-
cations. See 20 C.F.R. pt. 656 (1998). The certification
__________
1 A seventh plaintiff (Rodolfo Delsid Ramirez), whose case was
consolidated with appellants' cases below, was listed as an appellant
on the appellants' brief. However, as the government points out,
this plaintiff did not file a notice of appeal and is therefore not an
appellant before this court.
process begins when an employer, on behalf of an alien that
the employer seeks to hire, files an application for labor
certification with the local Employment Service office. See
id. s 656.21(a). The regulations require the employer to
describe the alien's qualifications and the employment posi-
tion on the application, see id. s 656.21(a)(1),(2), make certain
assurances related to the job offer, see id. s 656.20(c), and
submit documentation regarding the employer's efforts to
hire an American worker, see id. s 656.21(b). A "Certifying
Officer" then reviews the employer's submissions and decides
either to grant the labor certification or to issue a Notice of
Findings based on whether the employer complied with the
applicable regulations, and on whether the employer's sub-
missions satisfy the Act's statutory requirements (no willing,
able, qualified and available American workers, and no ad-
verse affect of alien employment on American workers). See
id. s 656.24(b)(1)-(3).
If the Certifying Officer issues a Notice of Findings, that
notice must specify the basis for not granting the certifica-
tion. See id. s 656.25(c)(2). The employer may then file a
rebuttal to the Notice of Findings (the alien may also file a
rebuttal, but only if the employer does). See id. s 656.25(d).
If a rebuttal is not timely filed, the Notice of Findings
becomes the Secretary of Labor's final decision denying the
certification, the available administrative remedies are
deemed to have been not exhausted, and any further appeals
to the Board of Alien Labor Certification Appeals (Appeals
Board) are forfeited. See id. s 656.25(c)(3). If a rebuttal is
timely filed by the employer, the Certifying Officer reconsid-
ers the application in light of any new evidence and makes a
"Final Determination" based on the same statutory and regu-
latory standards used in the initial determination. See id.
s 656.25(f). Assuming the final determination is a denial, the
last stage of the process replicates the intermediate stage:
the employer (and the alien, but not the alien alone) may
request a review by the Appeals Board, see id. s 656.26(a); if
no such review is requested, the Final Determination be-
comes the Secretary's final decision, see id. s 656.25(g)(2)(iv),
and the administrative remedies are deemed to have been not
exhausted, see id. s 656.26(b)(2). If at any point in the
process the certification application is granted, the Certifying
Officer sends the certification to the employer, who in turn
submits the certification to the appropriate Immigration and
Naturalization Service office. See id. s 656.28.
In each of the cases on appeal, the employer filed a labor
certification application on behalf of an alien in compliance
with the regulations. A Certifying Officer then issued a
Notice of Findings to the employer, stating that the employer
had not sufficiently documented that the landscaping job at
issue was full-time work (the regulations define "employ-
ment" as "permanent full-time work by an employee for an
employer other than oneself," id. s 656.3), and directing the
employer to provide payroll records for the last three years
for all workers employed as landscapers. The employer then
filed a timely rebuttal to the Notice of Findings, contending
that landscaping was in fact full-time work and submitting
some documentation to that effect, but declined to provide the
payroll records that the Certifying Officer had requested.
The Certifying Officer then issued a Final Determination
that, after the employer failed to request review by the
Appeals Board, became the Secretary's final decision denying
the labor certification application.
Each alien then filed suit in district court, without his
respective employer, contending that the Secretary's decision
was arbitrary and capricious. The Secretary filed motions to
dismiss in each case, arguing that the aliens failed to exhaust
their administrative remedies and that their claims were
moot. After consolidating the cases for purposes of the
Secretary's motions to dismiss, the district court granted the
motions in each case on the ground of failure to exhaust and,
in the alternative, mootness.
II.
We begin with the threshold question of prudential stand-
ing. Although the government did not explicitly challenge
appellants' standing, appellants accuse the government of
doing so implicitly. Be that as it may, we are obliged
independently to examine the issue. See Animal Legal De-
fense Fund, Inc. v. Espy, 23 F.3d 496, 499 (D.C. Cir. 1994).
We specifically reserved this question in Acupuncture Ctr. of
Washington v. Dunlop, 543 F.2d 852, 858 n.66 (D.C. Cir.
1976), because the employer in that case had joined with the
alien in the district court and on appeal. Two of our sister
circuits, see Stenographic Mach., Inc. v. Regional Admin.,
577 F.2d 521, 527-28 (7th Cir. 1978); Reddy, Inc. v. United
States Dep't of Labor, 492 F.2d 538, 544 (5th Cir. 1974), and a
number of district courts, see, e.g., Gladysz v. Donovan, 595
F. Supp. 50, 53 (N.D. Ill. 1984); Mukadam v. United States
Dep't of Labor, 458 F. Supp. 164, 167 (S.D.N.Y. 1978), have
concluded that aliens have standing to sue.
Although we have some doubts that Congress ever contem-
plated aliens suing to challenge a denial of a labor certifica-
tion--even though aliens are obviously regulated by the stat-
ute, see Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 396
(1987)--neither the statute's text, structure, nor legislative
history supplies the requisite "clear and convincing evidence"
of a preclusive purpose. Abbott Labs. v. Gardner, 387 U.S.
136, 141 (1967); see also Shook v. District of Columbia Fin.
Responsibility & Management Assistance Auth., 132 F.3d
775, 778-79 (D.C. Cir. 1998). Unlike in Block v. Community
Nutrition Inst., 467 U.S. 340, 348 (1984), for example, where
the statute itself set forth a regulatory regime that omitted
mention of certain parties, giving rise to an inference that
those parties were precluded from litigating in court, see
Block, 467 U.S. at 349, there is no indication here that
Congress itself considered the mechanism by which the Sec-
retary of Labor would make labor certification decisions, or
how (and at the request of whom) such decisions would be
reviewable in the federal courts. And while the legislative
history indicates that Congress intended to restrict further
the admission of alien workers when it amended the statute in
1965, see S. Rep. No. 748, 89th Cong., 1st Sess. (1965),
reprinted in 1965 U.S. Code Cong. & Admin. News 3328, 3333,
that does not speak to the question whether the class of aliens
deserving of admission under the statute have standing to
challenge in court the Secretary's decision to the contrary.
The regulatory regime is completely a creation of the Labor
Department's regulations, and under the Administrative Pro-
cedure Act, it is only statutes, not agency regulations, that
can preclude otherwise available judicial review. See 5 U.S.C.
s 701(a)(1); Gladysz, 595 F. Supp. at 53-54. In light of the
presumption of judicial review, see McNary v. Haitian Refu-
gee Ctr., Inc., 498 U.S. 479, 496 (1991); Bowen v. Michigan
Academy of Family Physicians, 476 U.S. 667, 670 (1986), we
cannot conclude (despite our suspicions) that Congress in-
tended to preclude the alien from challenging labor certifica-
tion denials without the alien's employer. See Block, 467 U.S.
at 351 (holding that, where substantial doubt about congres-
sional intent exists, the general presumption favoring judicial
review is controlling).
* * * *
The district court held that appellants failed to exhaust
their administrative remedies because their employers failed
to participate in all stages of the required administrative
review. Since the regulations provide that the employer's
failure to appeal the Certifying Officer's Final Determination
constitutes a failure to exhaust administrative remedies, the
district court concluded that the aliens were foreclosed from
pursuing their claims in court. Although the court expressed
sympathy for the aliens, who argued that they could not be
required to exhaust administrative remedies that they had no
independent right to pursue, the court feared that a contrary
result would give employers an incentive to "short-cut" the
administrative scheme by sending aliens directly to court to
argue the merits of the labor certification applications.
It is quite true that "no one is entitled to judicial relief for a
supposed or threatened injury until the prescribed adminis-
trative remedy has been exhausted." McKart v. United
States, 395 U.S. 185, 193 (1969) (quoting Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 41, 50-51 (1938)). But surely
that requirement pertains only to administrative remedies
actually available to a party. There is no support, in law or in
logic, for the proposition that "A" can be held to have failed to
exhaust remedies available only to "B." Although the regula-
tions authorize the alien to appeal adverse certification deci-
sions to the Appeals Board, that participation is conditioned
on the employer's filing of a request for review. Therefore,
where the employer makes no request for review, and the
regulations provide the alien with no opportunity to appeal an
adverse certification decision, we hold that the alien has not
failed to exhaust.
The district court also relied on the employer's withdrawal
from the administrative review process as the basis for its
alternative conclusion that the aliens' claims were moot. The
court reasoned that a labor certification application is in
essence a job offer to an alien; once an employer withdraws
from the administrative process, the Certifying Officer's deci-
sion becomes the Secretary's final decision, and the pending
application/job offer consequently ceases to exist. We doubt
that the district court can presume, as a matter of law, that
the employer abandoned the application solely because the
employer failed to appeal the Certifying Officer's Final Deter-
mination. In any event, the plaintiffs, besides seeking a
certification and a de novo hearing before the district court,
also requested any relief that the court deemed appropriate.
Hence, even assuming that some doubt existed whether the
underlying applications were still pending, the court, if it
concluded that the Secretary's denial was arbitrary and capri-
cious, could have awarded the plaintiffs relief by remanding
to the agency. Of course, as we explain below, no such relief
ultimately could be granted because the employer's withdraw-
al from the administrative process bars the alien's claim on
the merits. That notwithstanding, the mere possibility of a
remand is enough to show that the district court was incor-
rect to dismiss appellants' claims on the ground of mootness.2
__________
2 However, subsequent events have rendered moot the claim of
one of the appellants, Gil Peralta. See Flast v. Cohen, 392 U.S. 83,
95 (1968); Natural Resources Defense Council v. United States
III.
Although we disagree with the district court's jurisdictional
holding, we nevertheless affirm the district court's judgment
on the merits using somewhat related reasoning. The district
court's opinion was rooted in the court's entirely justified
view that "the employer is an essential participant in the
scheme for the granting of permanent labor certifications."
We fully agree with this conclusion notwithstanding our dis-
agreement with the district court over the appropriate doctri-
nal label through which to express it. The jurisdictional and
merits issues in these cases are inextricably linked because
the certification process, as a matter of administrative proce-
dure and substantive law, depends upon the employer's par-
ticipation. We read the Labor Department regulations to say
that an alien's employer is an indispensable party at each and
every stage of the administrative process, without whom the
employer cannot obtain the labor certification that the alien
seeks.
The applicable regulations presuppose the presence and
active participation of the alien's employer, from the initiation
of the process, see 20 C.F.R. s 656.21(a), to the required
documentation relating to facts particular to the employer's
__________
Nuclear Regulatory Comm'n, 680 F.2d 810, 813-14 (D.C. Cir. 1982).
Appellants inform us in their reply brief, and the government does
not dispute in its supplemental memorandum filed with the court,
that Mr. Peralta has been granted a labor certification pursuant to
a subsequent application filed by his employer. He has been
awarded all of the relief that he sought, and there is consequently
no live controversy concerning the original denial of his application
for the same position with the same employer. As to the appellants
whose employers have re-filed new certification applications that
are currently pending, we do not think their claims are mooted. In
contrast to Mr. Peralta, these parties have not yet received the
relief originally sought and thus their original claim that the denial
of their first certification application was arbitrary remains a live
controversy. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979) (holding that a previously live case can become moot only if
"interim relief or events have completely and irrevocably eradicated
the effects of the alleged violation").
employment and hiring practices, see id. s 656.21(b), to the
fact that the employer's appeal of an adverse decision within
the agency is a prerequisite to the alien's ability to appeal, see
id. ss 656.25(d), 656.26(a), to the ultimate issuance of the
certification (if at all) to the employer, see id. s 656.28.3 The
regulations simply do not authorize the issuance of a labor
certification without the employer's compliance with the appli-
cable regulations and availability to receive the certification.
Only if the regulations explicitly stated that "no labor certifi-
cation shall be issued if an employer withdraws from the
administrative process" could the regulations be any clearer
as to the indispensability of the employer to the process. We
think the structure of the administrative process succeeds by
clear implication in bringing about the same end.
In these cases, the agency followed its regulations and
treated the Certifying Officer's Final Determination as the
Secretary's final decision once the employer failed to request
review of that determination before the Appeals Board. See
20 C.F.R. s 656.25(g)(2)(iv). Appellants do not challenge the
validity of these regulations on appeal, and so we have no
occasion to examine whether the regulations' requirement
that the employer be present at each stage of the process is
valid. Compare Sieminski v. Donovan, 589 F. Supp. 790,
793-94 (N.D. Ill. 1984) (rejecting due process challenge to the
certification regulations). The employer's withdrawal from
the administrative process is, under the applicable and pre-
sumptively valid regulations, sufficient to uphold the agency's
refusal to grant certifications for these aliens. See id. at 792.
We conclude that the Secretary of Labor is always justified
(assuming the regulations are valid) in denying an application
for labor certification where the employer withdraws from the
administrative review process and fails to request review of
__________
3 Actually, even after a certification is granted, the employer's
participation is required. See 20 C.F.R. s 656.28; Kooritzky v.
Reich, 17 F.3d 1509, 1511 (D.C. Cir. 1994) (discussing regulations
governing post-certification filings by the employer).
an adverse decision by the Certifying Officer.4 In other
words, no alien's claim challenging a labor certification denial
in federal court can ever succeed on the merits if the employ-
er has abandoned the administrative process before its com-
pletion. This conclusion is implicit both in the regulatory
scheme in general, and in the Secretary's decision in these
cases to allow the Certifying Officer's determination to be-
come the agency's final decision simply because the employer
failed to seek administrative review. We think our resolution
of the case--that the regulations make the employer an
indispensable party to the certification process--is the more
appropriate means of expressing the conclusion underlying
the district court's exhaustion and mootness analysis. At the
end of the day, the result is the same: the aliens' claims must
be dismissed. The decision of the district court is
Affirmed.
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4 We do not decide whether a different result might obtain
where an employer completes the entire administrative process, but
leaves the alien to file suit in court alone.