Maine State Building & Construction Trades Council v. United States Department of Labor

United States Court of Appeals
For the First Circuit

No. 03-2040

MAINE STATE BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO;
BUILDING AND CONSTRUCTION TRADES DEPARTMENT, AFL-CIO,
Plaintiffs, Appellants,

v.

UNITED STATES DEPARTMENT OF LABOR; ELAINE L. CHAO,
in her official capacity as Secretary of Labor;
UNITED STATES ATTORNEY GENERAL; UNITED STATES DEPARTMENT OF
JUSTICE; COMMISSIONER, Immigration and Naturalization Service,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. David M. Cohen, U.S. Magistrate Judge]

Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Smith,* District Judge.

Terry R. Yellig, with whom Sherman, Dunn, Leifer & Yellig,
P.C., was on brief for appellants.

Evan J. Roth, Assistant United States Attorney, with whom
Paula D. Silsby, United States Attorney, was on brief for
appellees.

February 23, 2004

*
Of the District of Rhode Island, sitting by designation.
 SMITH, District Judge. In this case, two construction

workers’ unions claim that the federal and Maine departments of

labor applied an erroneous statutory standard when making the

decision to approve sixty temporary work certifications for foreign

workers. We assume that this allegation is true for purposes of

deciding whether that one-time error may form the basis for the

requested declaratory and injunctive relief.

The district court’s decision sets forth the background

of the case in full, see Maine State Building and Construction

Trades Council, AFL-CIO v. Chao, 265 F. Supp. 2d 105, 107-110 (D.

Me. 2003). A précis of the facts is sufficient for our purposes.

The dispute centers on the construction of two oil rigs in the

harbor of Portland, Maine. Between August and October of 2002,

Cianbro Corporation (“Cianbro”), an industrial contractor, applied

to the United States Department of Labor (“U.S. DOL”) and the Maine

Department of Labor (“Maine DOL”) for H-2B temporary labor

certifications for approximately one hundred and twenty foreigners

to be employed as structural and pipe welders on the rigs. Before

issuing the certifications, the U.S. DOL and Maine DOL were

required to calculate the prevailing wages for the jobs in

question, in order to ensure that such workers would not be paid

wages less than those paid to American workers. See 20 C.F.R. §

656.40. This they did by using a wage calculus set forth in the

McNamara-O’Hara Service Contract Act (“SCA”), 41 U.S.C. §§ 351-358,

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and related regulations. That was a mistake. The wage rate should

have been calculated by reference to the Davis-Bacon Act, 40 U.S.C.

§§ 3141-3148, rather than the SCA.1 Although notified of the error

by letter, the U.S. DOL did not rectify the problem before issuing

temporary labor certifications to Cianbro for the admission of

fifty pipe welders and ten structural welders. Armed with these

certifications, Cianbro filed a petition with the Immigration and

Naturalization Service (“INS”)2 for the issuance of the H-2B

temporary work visas to the certified foreign employees. On April

1, 2003, the INS approved Cianbro’s applications for twenty-three

beneficiaries.

During the pendency of the INS petition, the Maine State

Building and Construction Trades Council, AFL-CIO, and the Building

and Construction Trades Department, AFL-CIO (“the Unions”) brought

1
There is some discrepancy in the record about the nature of
the mistake and whether, in fact, there actually was any mistake.
The district court found that both the Maine DOL and U.S. DOL
applied the SCA to calculate the prevailing rate. The record
reflects, however, that the Maine DOL applied the SCA, but that the
U.S. DOL found both the SCA and Davis-Bacon Act inapposite. The
U.S. DOL appears to have applied a third standard, the Bureau of
Labor Statistics’ “Occupational Employment Statistics.” Whether
the formula used by the U.S. DOL was derived from the SCA or some
other source, however, is ultimately irrelevant, because all agree
that, for purposes of this appeal, the Davis-Bacon Act should have
been used, but was not.
2
Since this action was filed, the INS has been renamed the
Bureau of Citizenship and Immigration Services. See 6 U.S.C. §
271. All court filings, however, reflect that the operative events
in this case occurred before the official change in title, and we
therefore refer to the agency as the INS.

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this action against the U.S. DOL, Elaine Chao, in her official

capacity as the Secretary of Labor, the United States Attorney

General, the United States Department of Justice, and the

Commissioner of the INS (collectively “the Government”). The

Unions sought a declaration that the U.S. DOL’s use of the SCA, as

opposed to the Davis-Bacon Act, to calculate the prevailing wage

rate was arbitrary and capricious, an abuse of discretion and not

in accordance with the law. They also requested an injunction

requiring rescission of the temporary labor certifications issued

to Cianbro, and barring the Attorney General and the INS

Commissioner from issuing the work visas based on the

certifications.

The district court3 denied the Unions’ application for a

temporary restraining order, finding that it lacked jurisdiction to

affect any decision or action of the Attorney General or INS

Commissioner in connection with the H-2B visa application. The

court also held that the Unions lacked standing to seek the

requested relief. The Government subsequently moved to dismiss the

case under Rule 12(b) of the Federal Rules of Civil Procedure for

lack of subject-matter jurisdiction, standing, and ripeness, as

well as for failure to state a claim. The Unions opposed this

dismissal motion and filed concurrently a motion to amend their

3
The parties consented to Magistrate Judge Cohen’s
jurisdiction over the entire case, pursuant to Fed. R. Civ. P.
73(b) and 28 U.S.C. § 636(c).

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complaint to allege a second cause of action which, they hoped,

would cure the flaws of the first. This new cause of action

challenged “as arbitrary, capricious, an abuse of discretion, and

otherwise not in accordance with law” the DOL’s alleged

pattern and practice of disregard . . . of its
responsibility under its own regulations to
consider whether the wage stated in an
application for a labor certification for a
job opportunity is in an occupation that is
subject to a wage determination under the
Davis-Bacon Act . . . .

Maine State Building and Construction Trades Council, 265 F. Supp.

2d at 111 (citing Proposed Amended Complaint, ¶¶ 51-52). The

district court granted the Government’s motion to dismiss, finding

that the case was moot because the H-2B visas had already issued.

Furthermore, the district court denied the Unions’ motion to amend

their complaint, holding that they lacked standing to press their

claims and failed to state a claim upon which relief could be

granted. We review both the dismissal of the original complaint

and the decision of the district court to deny the Unions’ motion

to amend.

Our review of a dismissal on the grounds of mootness is

de novo. Maine School Admin. Dist. No. 35 v. Mr. and Mrs. R., 321

F.3d 9, 17 (1st Cir. 2003). “Even if an actual case or controversy

exists at the inception of litigation, a case may be rendered moot

(and, therefore, subject to dismissal) if changed circumstances

eliminate any possibility of effectual relief.” Id. Where the

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relief sought is injunctive in nature, “this ordinarily means that

once the act sought to be enjoined occurs, the suit must be

dismissed as moot.” Id.

The complaint, as originally filed, seeks relief only

with respect to the U.S. DOL’s treatment of Cianbro’s application,

and that relief is now moot. The temporary labor certifications

and H-2B visas have already issued; there is nothing to enjoin. In

resisting disposition on this ground, the Unions purport to rely on

our decision in Allende v. Shultz, 845 F.2d 1111 (1st Cir. 1988).

We were confronted there with an allegedly unlawful, official

immigration policy, and concluded that “[a]lthough the specific

application of that policy against Allende in March 1983 is moot,

the validity of that policy in general remains a live controversy.”

Id. at 1115 n.7. Unlike Allende, however, there is no such policy

of general application, whether explicit or tacit, identified in

the original complaint. Once the labor certifications and H-2B

visas issued, there was no longer any case or controversy to

decide.

Anticipating defeat on this issue, the Unions advance an

alternative position: they concede the possibility that the

Cianbro-related allegations are moot, but invoke the exception to

the mootness rule for actions “capable of repetition, yet evading

review.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347,

46 L. Ed. 2d 350 (1975). “In order to qualify for this narrow

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exception to the mootness doctrine, a plaintiff must show that ‘(1)

the challenged action was in its duration too short to be fully

litigated prior to its cessation or expiration, and (2) there was

a reasonable expectation that the same complaining party would be

subjected to the same action again.’” Gulf of Maine Fisherman’s

Alliance v. Daley, 292 F.3d 84, 89 (1st Cir. 2002) (citing

Weinstein, 423 U.S. at 149).

Though their position as to the first prong is not

entirely without merit,4 the Unions have not alleged any factual

basis for the claim that they will be victimized by the same error

ever again. Bromides about the American worker’s potential for

future job losses are unavailing without some concrete allegations

that the Government is likely to repeat its miscalculation of the

prevailing wage rate by using the wrong standard. Thus, the Unions

fail to meet the standard for likelihood of repetition.

4
The Unions were notified of the issuance of the temporary
labor certifications on February 5, 2003. Cianbro’s petition for
H-2B visas was received at the Vermont Service Center of the INS on
March 21, 2003, and approved on April 1, 2003. The Unions filed
their complaint and application for a temporary restraining order
on March 21, 2003, informing the court that speed was of the
essence because of the imminent INS action. Although the court did
enter an order denying the request for a temporary restraining
order prior to the INS’ approval of the visas, it cannot be said
that the Unions’ case was “fully litigated” by that time. It is
doubtful, even under expedited review, that this case could have
been fully litigated within a matter of weeks. Cf. Gulf of Maine
Fishermen’s Alliance, 292 F.3d at 89 (one year was a sufficient
period of time within which the case could have been fully
litigated; the losing party therefore could not satisfy the first
prong of the “capable of repetition, yet evading review”
exception).

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 Their first complaint reduced to ashes, the Unions seek

to have it rise like a phoenix in their motion to amend. The

amendment, which the district court rejected, merely inserted the

words “pattern and practice” into the same aggregate of factual

claims set forth in the first complaint. “We review denials of

leave to amend under Rule 15 for abuse of discretion, deferring to

the district court for any adequate reason apparent from the

record.” Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir.

1994). There is adequate reason in ample supply. The Unions

cannot construct a “pattern and practice” complaint simply by

changing the label on the package. Nothing other than the Cianbro

incident is offered to support the conclusory statement that the

Government has a practice of “disregarding its obligation to comply

with its own regulations.” Motion to Amend, at 2. Though the

court denied the amendment for “failure to state a claim for which

relief can be granted,” what it more precisely intended was a

denial on the basis of futility. See, e.g., Hatch v. Department

For Children, Youth and Their Families, 274 F.3d 12, 19 (1st Cir.

2001) (“We view the court’s exercise of discretion in this area of

the law through the prism of Federal Rule of Civil Procedure 15(a),

which indicates that leave to amend a complaint ‘shall be freely

given when justice so requires.’ In practice, this means that the

denial of such a motion will be upheld so long as the record

evinces an arguably adequate basis for the court’s decision (e.g.,

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futility, bad faith, undue delay, or a dilatory motive on the

movant’s part).”). Because this amendment sets forth no scenario

that would entitle the Unions to the requested relief, we find that

the district court did not abuse its discretion in denying as

futile the Unions’ motion to amend. This ruling is without

prejudice to the Unions’ right to bring a new pattern and practice

action in the future based on identified facts that justify it.

Given this outcome, it is unnecessary for us to review the district

court’s disposition of the case based on lack of subject-matter

jurisdiction or lack of the Unions’ standing.

Affirmed.

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