GENTIS, INC. et al v. SMALL et al, No. 2:2009cv05490 - Document 16 (E.D. Pa. 2011)
Court Description: MEMORANDUM AND OPINION. SIGNED BY HONORABLE LOUIS H. POLLAK ON 1/7/11. 1/11/11 ENTERED AND COPIES MAILED, E-MAILED.(fdc)
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GENTIS, INC. et al v. SMALL et al Doc. 16 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA GENTlS, INC.; NAZARETH GODFREY, Plaintim, No. 09-cv-5490 v. JANE OATES, ASSISTANT SECRETARY, L'NITED STATES FILED DEPARTMENT or LABOR, ot aI., 'JAN 11 2011 Defendants. Br. Oep. January i., 2010 Pollak, J. Belore the court are the parties' cross-motions lor summary judgment. Docket Nos. 12, 13. Having considered the summary judgment motions and associated brief., pleadings, and administrative record, the court will grant the plaintiffs' motion for summary judgment in major part and deny the defendants' motion. Primary responsibility tilT the issuance of immigration visas under the Immigration and Nationality Act ("INA") rests with lhe Sceretaty of Homeland Security and the United States Citizenship and Immigration Services. However. aliens may not obtain I Dockets.Justia.com immigrant visas to engage in permanent employment in the United States unless the Secretary of Labor certifies to the Secretary of State and the Secretary of Homeland Security that employment of an alien in a particular job opportunity will not adversely al1ect the ,,'ages and working conditions of workers in the United States similarly employed and that U.S. workers who arc able, willing, and qualitied are not available. g U.S.C. § I I 82(a)(5XA). The Departmeot of Labor ("Department") has adopted regulations creating a process to Jillfill its obligations under the INA. See 20 C.F.R § 656. The procedure hegins when an employer files an application for certification with an Employment and Training Administration application processing center. ld. § 656.17(a). An application for labr>r certilication is reviewed by 0 CertifYing Officer, who dctennines whether the application should be certified, denied, or selected for audit. ld. § 656.17(b)( 1J. If an application is selected for audit. the employer is sent an audit letter requesting thal the employer submit documentation to support the applicalion by a date specificd. ld § 656.17(0). The letter must advise the employcr that the application will he denied ifthc documentation is not received within 30 days. Id. § 656.20(0)(3).' In addition, "Hrilure to provide documentation in a timely manner constitutes a refusal to exhaust available administrative remedies." Jd Such failure also renders administrative I The regulations provide that a Certifying Officer "may in his or her discretion provide onc extension, of up to 30 days" for applicant"> to submit the required documentation. Id. § 656.20(c). 2 review by the Hoard of Alien Labor Certification Appeals (HAl,CA) unavailable, Jd. The regulations governing labor certification do not specify whether an applicant must actually rec·cive an audit Jetter in order to trigger these consequences. PlaintiITs Gcntis, Inc. and Godfrey Nazareth are an employer and a potential employee. On April 21, 2008, Gcntis med an application for labor certification with the DOL on behalf of Nazareth, who is an alien, so that Gentis could employ him as a biomedical engineer. On June 19, 2008, the Department issued an Audit Notification letter ("Audit Letter") addressed to Genlis' attorney requesting copies ofdocumentation supporting the attestations made in Gcntis' application. Administrative Reeord ("AR") at 39,-40,' The Audit Letter specified that Gentis was required to submit the required documentation by July 21,2008. Id. at 40. The Department never received a response from Gentis to the letter, and on August 28, 2008, the Department issued a dedsion denying Gentis' application ("Denial Letter"). Id. at 34-35. On September 25, 2008, Genlis sent n letter to the Department requesting reconsideration of the denial of its The Audit Letter ,vas addressed 10 "400 E. Lancaster Ave., elo Orlow, Kaplan & Hohenstein, LLP, David Kaplan, 620 Chestnut St. Suite 656 1'0 Box 400! 7, Philadelphia, PA 19106:' AR at 39; see a/so AR at 37 (mailing label with same address). "400 E. Lancaste d). NoneUleless, "[clvcn prudential exhaustion requirements will be excused in only a narrow set of circwnstanccs." Wi/son, 475 F.3d at 175, One circumstance in which non-exhaustion ofa remedy is excused is when pursuit of the remedy would be a futile exercise. To invoke the futility exception, "a party must 'provide a clear and positive showing' of futility be10re the District 5 Id. (quoting D'Amico v. CBS Corp., 297 F.3d 287, 293 (3d Cir. 2003). The Denial Letter stated, consisl<nl with the federal regulations described above, that Gentis did not have a right to seek review of the denial before BALCA beeause Gentis' application was denied on the basis of its failure to respond to the Audit Letter. Plaintitfs argue that the letter demonstrates that seeking further administrative review would be futile. Ilowever. in the proceedings before this court, the Department departs from the letter's position that review before BALCA is not available. Inslead, lhe Department urges this court to follow the <xample of another district court, see Powell Elec. Mfg. Co. v. Solis, 2009 WL 995278 (N.D, Tex. 2009) (unpublished), and fInd that the plaintifis should appeal to BALCA. In Powell. an employer's application tor labor certifIcation was denied after the employer failed to submil a timely response to a Notice of Findings (NOF) detailing deficiencies in the employer's application. ld, at *3. The district court sugge.-'·;ted that after receiving the denial, the employer should have soughl review by BALCA, because "even when denial has been based on a milure to respond to an NOF , , . BALCA will reopen the application at the rebuttal stage, allowing it to continue without prejudice, if necessary to avoid "manifest injustice. ))) ld. at *5 (quoting ..hdmleleine S. Bloom, No, 88INA-I 52 (Oct. 13, 1989) (en bane». The Depru1ment suggests that "Powell provides excellent guidance and a sound approach to dealing with an issue, as here, that can fairly be addressed administratively in the first instance." Def, 's Mot. for Summary Judgment at 10. The Department also noles that, in an effort to resolve this 6 it has offered to allow BALCA to litigate the issue of whether Gentis and its counsel received the audit letter, but that Gentis has declined that opportunity. ld. at 3. Powell relied on a line ofBALCA decisions stemming from Madeleine S. Bloom, which held that "absent a specific intent to treat regulatOI} deadlines as jurisdictional and unwaivable" such deadlines may be waived wben failing to toll them "would result in manifest injustice:' No. 88-fNA-152, 1989 WL 250369, at *4; see also Powell, 2009 WL 995278, at *5 (discussing Bloom). Bloom found that its "manifest injustice" standard was met where an attorney promised to mail an employer's response to an NOF to the Department but failed to do so, and instead left the state and thereafter failed to respond to communications from the employer. 1989 WI. 250369, at *2. As noted above, Bloom and its progeny, including Powell, involved denials stemming from an applicant's failure to respond to an NOF. This case, by cont!"dSt, involves a denial steflnning from a failure to respond to an audit letter. Although neither party addresses the issue in their briefs, BALCA's easelaw indicates that BALCA considers itself to have more limited jurisdiction to review failures to respond to audit letters. In Mildred Schwartz, No. 2008-PER-115, 2008 WL 4771908 (Oct. 28, 2008), an employer received an Audit Noolieation letter direeting it to submit supporting docurnenlalion for its application. including a Recruitment Report. The employer responded 10 the letter with some of the requested documentation, but not the Recruitment Report, and the CertifYing OtJicer denied the application. BALCA found thaI it had jurisdiction. holding tbat under 20 C.F.R. § 656.20(a)(3), it has "suhject matter 7 jurisdiction to review whether an employer was properly found to have failed to timely supply documentation requested ill .[nJ ... audit letter. If so, the denial resulting from such. failure is unreviewable." Id. at *2; see also KL Gardens Devd Corp., No. 2009PER-393, 2010 WL 1638087 (Mar. 3, 2010) ("We concur with the Schwartz panel's interpretation of sectinn 656.20(a)(3). The regUlation is not strictly jurisdictional, but it does circumst,.,-ri.bc the Board's review authority once it is found that an employer tailed to timely supply documentation requested in a PERM audit letter."). BALCA then determined that the employer lailed to timely submit the Recruitment Report, and accordingly dismissed the appeal without further discussion. Mildred Schwartz, 2008 WL 4771908, at *2. Both Mildred Schwartz and K.L. GW'dens emphasized BALCNs limited jurisdiction to review only the timeliness of responses to audit letters. In addition, neither mentioned Bloom's "manifest injustice" standard, Thus, i1 appears not unlikely that, if the case at bar were to be remanded to BALCA, BALCA would merely address the question whether Gentis responded to the Audit Letter in a timely marulef, and not detcnnine whether Gentis actually received the Audit Letter or whether Ihe Audit Letter itselrwas facially det1cient. Powell found that the doctrine of prudential exhaustion favored pennitting BALCA to engage in a review of whether the NOF was properly denied. ld. at *7-8. In reaching this conclusion, Powell emphasized that because BAJ .CA "maintains the power to rcopen any case sua sponte regardless ofreguJatory deadlines, it is sensible to require R exhaustion ofthis remedy before gaining a right to federal jurisdiction." ld at *7. While BALCA may have such power in cases involving failures to respond to NOFs. Sclnvarrz and KL. Gates indicate that BALCA feels that its jurisdiction to review f.ilures to respond to audit letters is more limited. Thus, remand in this case would be futile. B. Receipt anhe Audit I.etter Plaintiffs claim that Gentis did not receive the Audit Letter. The administrative record contains Gentis' letter to the Department requesting reconsidemtiun, and that letter denies that the plaintiffs ever received the Audit Letter. Plaintiffs further claim that although Gentis received the Denial I.etter, Gentis' lawyer did nuL The Department argues that, ifthis court finds that the administrative process was exhausted, this court should rej""t plaintiffs' claim that thcy did not receive the Audit Letter. For support, the Department points to the administrative record, which contains (I) a print-out of dIe Audit Letter and (2) undated mailing labels with the correct address for Gentis and Gentis' la",),cr. The Department argues that this evidence is sul1icient to support a presumption thatthe leller was delivered, DeCs Summary Judgment Br. at II. This court concludes that the Department's summary judgment motion and the accompanying administrative rccord have failed to present evidence to support a presumption thaI the letter was received. First, although the Department points to the copy ofthe Audit Letter and undated mailing labels in the administmtive record, the Department's summary judgment motion and the administrative record provide no evidence concerning the Department's internal mailing procedures. See In re Cendant 9 Corp, Prides Liligation, 311 F,3d 298, 304 (3d Cir. 2002) ("To invoke the presumption, proof of procedures followed in 'the regular course of operations' gives rise to a strong inference that it was properly addressed and mailed" (citations omitted)). Second, it appears from the administrative record that the Department sent the Audit Letter by regular mail, rather than certified maiL 'lh" Third Circuit recognizes that '''a weaker presumption' of eiTective service applies to service by regular mail" than to service hy certified maiL Santana Gonzalez v. United States, 506 P.3d 274, 278 (3d Cir. 2007). In Santana Gonzalez, which involved a notice regarding a removal hearing that a Cuban alien claimed she did not receive, the court found that this weaker presumption was rehutted despite the fact that petitioner failed "the clear requirement that she give written notice of any change in her address" because (I) the petitioner "had little to goin by failing to appear at the hearing" and (2) circumstantial evidence, including evidence that petitioner took affirmative action to inquire about her status, indicated that she "at all limes sought to have a hearing to adjust her status." Id. at 280-81. The presumption of receipt is likewise rebutted in tbis case. Gentis, which filed the labor certification application in order to employ '!'lazarcth, had Iittle-·-indccd, nothing-to gain by not responding tn the Audit Letter. And once notified about the denial, Gcntis took the step ofpromptly requesting that the decision be reconsidered. The request for reconsideration accompanied by attachments containing documentation requested in the Audit Letter, dispelling any inference that Gentis deliberately failed to respond to the audit to avoid having to produce such documentation. Finally, unlike the 10 petitioner in Santana Gonzalez, Gentis and its attorney did not change their rendering it more likely that a letter that was actually sent to them would reach at least one of them. For these reasons. the Department bas failed to estahlish that it is entitled to a presumption of receipt. Conversely, this analysis supports a finding that Gentis did not receive the Audit Letter, as does the ractthat the only evidence in the administrative record directly bearing on whether Genti, actually received the Audit Letter is in Genlis' Reconsideration Request which states that neither Gentis nor its attDrney received the Audit Letter. Accordingly, the court concludes that the denial of Gentis' application was predicated on an unsupportable determination that Gentis had received and ignored the Audit I,etter. C. Remedy 'Ihe AP A authorizes reviewing courts to "hold unlawful and set a,ide agency ilndings, and conclusions lbund to be ... arbitrary, capricious, an abuse of discretion, (}f otherwise not in accordance with law," 5 U.S.C. § 706(2), For the reasons above. the court will vacate the Department's denial of Gentis' application. In addition, because "flhe long time period that has elapsed since Genlis filed its motion for reconsideration, the court will also order the Department (I) tn inrorm Gentis what infonnation and documentation, if any, Gentis must provide in order to comply with the 11 audit request and (2) to provide Gentis nolless than 30 days to respond" m. Conclusiog Accordingly, plaintifls' motion for summary judgment will be grunted in major part aad the defendants' motion for summary judgment will be denied. The Denial Letter will be vacated aad the Department will be directed to conduct further proceedings consistent with this opinion. An apprupriate order accompanies this opinion. BY THE COURT: Is! Pollak, I. , Plaintiffs also request a dedaratory judgment that the Department's denial ofthe application is contrary to law. and an order requiring the Department to make a decision on plaintilIs' application within 30 days. The court concludes that this relief is unnecessary under the circumstances of this casco 12
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