CYBERWORLD ENTERPRISE TECHNOLOGIES v. NAPOLITANONo. 09-2515.
602 F.3d 189 (2010)
CYBERWORLD ENTERPRISE TECHNOLOGIES, INC. d/b/a Tekstrom, Inc.
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.
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.
United States Court of Appeals, Third Circuit.
Argued January 11, 2010.
Filed: April 12, 2010.
H. Ronald Klasko, Esq., [Argued], Klasko, Rulon, Stock & Seltzer, Philadelphia, PA, Stephen J. Neuberger, Esq., The Neuberger Firm, Wilmington, DE, for Appellant. Seth M. Beausang, Esq., Office of United States Attorney, Wilmington, DE, Joan Brenner, Esq., [Argued], Paul L. Frieden, Esq., United States Department of Labor, Office of the Solicitor, Washington, DC, for Appellees.
Before: RENDELL, AMBRO and CHAGARES, Circuit Judges.
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,
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 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
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.
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; 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:
§ 1182(n)(1)(F) (emphases added).
The inquiry requirement is also contained in Department of Labor regulations:
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 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).
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.
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:
§ 1182(n)(2)(C)(i) (emphases added). The one-year suspension required by § 1182(n)(2)(C)(i)(II) is known as "debarment."
The Department's regulations provide for the same sanctions:
20 C.F.R. § 655.810 (emphases added).
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.
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 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.
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
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 for job training and employment. 476 U.S. at 255, 106 S.Ct. 1834. 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, 106 S.Ct. 1834 (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, 106 S.Ct. 1834. 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, 106 S.Ct. 1834.
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, 106 S.Ct. 1834. 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, 106 S.Ct. 1834. 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, 106 S.Ct. 1834 (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 intended to impose a jurisdictional limitation on agency action." Id. at 262-63, 106 S.Ct. 1834.
The Court also discussed and rejected several opposing arguments. First, it distinguished Pierce County from an earlier case, Mohasco Corp. v. Silver,
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, 106 S.Ct. 1834. 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, 106 S.Ct. 1834.
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, 106 S.Ct. 1834.
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.,
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, 106 S.Ct. 1834, 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, § 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
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 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, 106 S.Ct. 1834. 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,
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, 123 S.Ct. 748. 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, 123 S.Ct. 748. Nothing else in the statute's language indicates that Congress intended to limit the 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
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), U.S.Code Cong. & Admin.News pp. 6710, 6745 (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 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, 106 S.Ct. 1834.
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), U.S.Code Cong. & Admin.News pp. 6710, 6741. 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 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
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 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,
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 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.
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.
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 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.
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.
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 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).
Cyberworld is correct that § 655.855(a) and (c), despite being cited in the Administrator's
§ 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 Administrator.
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,
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,
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.
For the reasons stated above, we will affirm the District Court's order granting summary judgment to the Government defendants.
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