The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0272p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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BROADGATE, INC.,
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Plaintiff-Appellant, │
> No. 22-1944
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v. │
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JULIE SU, Acting Secretary, U.S. Department of Labor, │
Defendant-Appellee. │
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Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:22-cv-11593—Laurie J. Michelson, District Judge.
Argued: October 31, 2024
Decided and Filed: December 20, 2024
Before: GRIFFIN, KETHLEDGE, and BUSH, Circuit Judges.
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COUNSEL
ARGUED: Michael E. Piston, TRANSNATIONAL LEGAL SERVICES, P.C., Rochester Hills,
Michigan, for Appellant. Christopher J. Doyle, UNITED STATES ATTORNEY’S OFFICE,
Detroit, Michigan, for Appellee. ON BRIEF: Michael E. Piston, TRANSNATIONAL LEGAL
SERVICES, P.C., Rochester Hills, Michigan, for Appellant. Christopher J. Doyle, UNITED
STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
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OPINION
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KETHLEDGE, Circuit Judge. Broadgate, Inc. appeals an order in which the Department
of Labor found that Broadgate had willfully violated the Immigration and Nationality Act. We
reject its arguments and affirm.
No. 22-1944 Broadgate, Inc. v. Su Page 2
I.
The Immigration Act’s H-1B visa program allows employers to hire temporary, non-
immigrant employees to work in “specialty occupations.” See generally 8 U.S.C.
§ 1101(a)(15)(H)(i)(b). In February 2018, one of Broadgate’s H-1B employees filed a complaint
with the Labor Department’s Wage and Hour Division, alleging that Broadgate had not paid him
the full wages required by the Immigration Act. See generally 8 U.S.C. § 1182(n)(1)(A); 20
C.F.R. § 655.731(a). The Division opened an investigation, which substantiated the employee’s
claim and uncovered evidence that Broadgate had not posted certain workplace notices required
under the H-1B visa program. 8 U.S.C. § 1182(n)(1)(C); 20 C.F.R. § 655.734. Accordingly, in
December 2018, Timolin Mitchell—the Director of the Wage and Hour Division’s Detroit
District—issued a determination letter, finding that Broadgate had not paid “required wages” and
had willfully failed to post required notices, among other violations. The letter barred Broadgate
from participating in the H-1B program for two years, required Broadgate to pay back wages of
more than $31,000, and assessed a “civil penalty” of about $68,000.
Broadgate sought review before an Administrative Law Judge, challenging only the
determination that Broadgate had willfully failed to post certain workplace notices. (Broadgate
stipulated to the other violations.) Broadgate’s argument, as relevant here, was that the District
Director lacked authority to issue the determination letter. The ALJ agreed and vacated
Mitchell’s determination regarding the workplace notices; but the Department’s Administrative
Review Board reversed that decision. On remand before the ALJ, Broadgate made a new
argument: that the Wage and Hour Division had exceeded its authority by investigating
violations (failure to post required notices) that had not been alleged in the employee’s original
complaint (which alleged nonpayment of required wages). The ALJ rejected that argument and
affirmed the Director’s imposition of fines and penalties. The Review Board affirmed, as did the
district court. This appeal followed.
No. 22-1944 Broadgate, Inc. v. Su Page 3
II.
The Review Board’s opinions are “final agency decisions” subject to judicial review.
Kutty v. U.S. Dep’t of Labor, 764 F.3d 540, 546 (6th Cir. 2014). We review “de novo a district
court’s determination regarding final agency actions.” Id.
A.
Broadgate argues that the District Director lacked authority to issue the December 2018
determination letter. By way of background, the Immigration Act vests the Secretary of Labor
with authority to investigate and punish violations of the workplace-notice requirements at issue
here. 8 U.S.C. § 1192(n)(2). A regulation delegates that authority to the Administrator of the
Department’s Wage and Hour Division. 20 C.F.R. § 655.800. And the Administrator may
designate authorized representatives to exercise that authority. 20 C.F.R. § 655.715. The
Director of the Division’s Detroit District, in turn, is another three levels or so beneath the
Administrator on the Department’s organization chart. Broadgate says the government lacks
proof that the Administrator delegated to the District Director authority to make the
determination (regarding the workplace notices) at issue here.
Section 7 of the APA provides that “[e]xcept as otherwise provided by statute, the
proponent of a rule or order has the burden of proof.” 5 U.S.C. § 556(d). Here, the
determination letter is the order at issue; the government is the letter’s proponent; and so the
government bears the burden of proof.
Burdens of proof relate to factual findings, not conclusions of law. One proves the
existence of particular facts; but one establishes or demonstrates, rather than proves, a legal
conclusion. See, e.g., United States v. Wynn, 987 F.2d 354, 358 (6th Cir. 1993). The party with
the burden of proof under § 556(d), therefore, must prove the facts necessary for the lawful entry
of the order at issue.
The factual question here is whether District Director Mitchell was vested with authority
to issue the determination letter to Broadgate. As to that question, under § 556(d), the
government bears the burden of proof. The Supreme Court has defined “the term ‘burden of
No. 22-1944 Broadgate, Inc. v. Su Page 4
proof,’” as used in § 556(d), “to mean the burden of persuasion.” Dir., Off. of Workers’ Comp.
Programs v. Greenwich Collieries, 512 U.S. 267, 276 (1994). The burden of persuasion is a
burden of showing that the preponderance of the evidence supports a particular finding. Id. at
277–78. Thus, “if the evidence is evenly balanced, the party that bears the burden of persuasion
must lose.” Id. at 272. The burden of production, by contrast, is “an alternative concept,” which
describes “a party’s obligation to come forward with evidence to support its claim.” Id. at 272,
274. The APA thus requires the proponent of a rule or order to carry a burden of persuasion as
to disputed facts. But the opposing party can be assigned a burden of production without
violating § 556(d). See Glen Coal Co. v. Seals, 147 F.3d 502, 512–13 (6th Cir. 1998).
What the courts have called “the presumption of regularity” assigns a burden of
production to Broadgate here. Courts have applied that presumption in various contexts; as
relevant here, the rule is that “[a]cts done by a public officer ‘which presuppose the existence of
other acts to make them legally operative, are presumptive proofs of the latter.’” R.H. Stearns
Co. v. United States, 291 U.S. 54, 63 (1934) (quoting Bank of the United States v. Dandridge, 25
U.S. 64, 70 (1827) (Story, J.)). Presumptions like this one often reflect long experience that one
fact is usually conjoined with another—the facts here being that, when a public official takes an
action in her official capacity, she usually in fact has authority to take it.
Here, under this rule, Director Mitchell’s issuance of the determination letter is
presumptive proof that the Administrator had vested her with authority to issue it. Yet the APA
does put limits on the presumption’s effect in this context. Section 556(d) allows courts—
“[e]xcept as otherwise provided by statute”—to impose upon the opponent of an order (here,
Broadgate) only a burden of production. 5 U.S.C. § 556(d); Greenwich Collieries, 512 U.S. at
280–81. That burden is akin to making out a prima facie case. See Greenwich Collieries, 512
U.S. at 274; Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 257 (1981). And so that
modest burden is the one that Broadgate bore here.
But Broadgate does not contend that it has met any such burden. Instead, Broadgate’s
argument is a legal one: namely, that the imposition of any evidentiary burden upon it—as the
opponent of an order—would violate § 556(d). In support, Broadgate cites NLRB v. Kentucky
River Community Care, Inc., where the Court said in passing that the NLRB’s General
No. 22-1944 Broadgate, Inc. v. Su Page 5
Counsel—in proving the elements of “an unfair labor practice” under the National Labor
Relations Act—bore “the burden of persuasion as well as of production” under § 556(d). 532
U.S. 706, 712 (2001). But that statement was plainly dicta, which was appended to the Court’s
recitation of a point that “the Board [did] not dispute.” Id. Moreover, that dicta was specific to
the General Counsel’s burden of “proving the elements of an unfair labor practice,” id., which is
not the same burden the government bears here. And the import of Broadgate’s reading of
Kentucky River is that, under § 556(d), a proponent’s burden of persuasion is inseparable from a
burden of production. The Court in Greenwich Collieries expressly said otherwise. 512 U.S. at
276. Finally, in Kentucky River the Court cited Greenwich Collieries on that point rather than
overruled it. We therefore reject Broadgate’s challenge to the Director’s authority to issue the
determination letter.
B.
Broadgate separately argues that the Wage and Hour Division lacked statutory authority
to investigate the notice violations at issue here. The Immigration Act provides that an
“aggrieved party” may file a complaint with the Wage and Hour Division regarding an
employer’s failure to comply with H-1B regulations. 8 U.S.C. § 1182(n)(2)(A). If the Division
finds “reasonable cause to believe that such a failure” occurred, it may—indeed must—initiate
an investigation. Id. That determination of reasonable cause “limits the scope of the initial
investigation.” Missouri Med. Pro-Care Providers, Inc. v. Perez, 812 F.3d 1132, 1138 (8th Cir.
2015). But if an investigation within that scope yields evidence of other violations, the Division
may (if it finds reasonable cause) investigate those potential violations too. See id. at 1139; cf.,
e.g., United States v. Baker, 976 F.3d 636, 644 (6th Cir. 2020).
Here, the Division commenced its investigation after an H-1B employee complained that
Broadgate had not paid him the wages required by the Act. The Division found reasonable cause
to investigate that complaint. As a matter of course, that investigation required Broadgate to
produce its “public-access file,” which typically includes documentation of the wages paid to an
employer’s H-1B employees as well as evidence of its compliance with the Act’s notice
requirements. See 20 C.F.R. § 655.760(a)(2). The investigation of the unpaid wages thereby
yielded evidence (in the public-access file) of the notice violations. Hence the agency was
No. 22-1944 Broadgate, Inc. v. Su Page 6
entitled to investigate them. Broadgate counters that the agency should have opened a separate
investigation as to those potential violations. But Broadgate did not raise that argument until its
reply brief in our court, so we deem that argument forfeited here. See Bose v. Bea, 947 F.3d 983,
993 (6th Cir. 2020).
* * *
The district court’s judgment is affirmed.