Amendment To Regulation That Converted A Labor Certification Of "Indefinite" Validity To One Of 180-Day Validity Was Not A Retroactive Application Of The Amendment In That It Did Not Impair Any Vested Right
DURABLE MANUFACTURING CO. v. UNITED STATES DEPARTMENT OF LABOR (August 18, 2009)
.jpg)
Congress has specified a process under which an employer is allowed to obtain a visa for an alien worker. Before the government can issue a visa to such an alien, it must have issued a labor certification. A labor certification is a statement by the Secretary of Labor that there are insufficient qualified workers available to perform specific work and that the hiring of an alien to perform the work will not adversely affect wages and working conditions. In the past, labor certifications were generally valid indefinitely. The regulations were amended, effective July 2007, to provide that a labor certification was only valid for 180 days from the date of the certification. A number of employers who had received labor certifications and the aliens who were to be hired filed suit, alleging that the agency acted beyond its authority in amending the regulation or, alternatively, that it should not have been applied retroactively. The district court granted summary judgment to the government. The employers and aliens appeal.
In their opinion, Judges Manion, Rovner and Tinder affirmed. The Court looked to both the language of the statute and its purpose in order to determine whether the agency acted within its authority in amending the regulation. Here, the statute actually requires the Secretary of Labor to certify the labor supply "at the time of" the visa application. The earlier version of the regulation did not address this temporal requirement -- the amendment does. The amended regulation also promotes the purposes of the statutory scheme by ensuring that the visa determinations are based on current labor market indicators. The Court concluded that the agency was within its authority in promulgating the amendment. With respect to the argument that the amendment was an illegal retroactive rulemaking, the Court concluded that the amendment did not, in fact, have retroactive application. Under the Supreme Court's decision in Landgraf, an amendment only 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." Some of the certifications at issue were not approved until after the effective date of the amendment -- the amendment had no retroactive application with respect to them. With respect to the applications that were approved prior to the amendment, the plaintiffs possessed a right -- the right to a certification of "indefinite" validity. Their right was to a certification that was valid until the agency fixed a different period of validity. The amendment did nothing more and thus does not operate retroactively.
