# Eric G. Hall and Hall Enterprises, Inc. v. Ann D. McLaughlin Secretary of Labor > Court of Appeals for the D.C. Circuit · January 13, 1989 · 864 F.2d 868 URL: https://www.frixlaw.com/law-library/cases/9478543 ## Case - **Full name:** Eric G. HALL and Hall Enterprises, Inc., Appellants, v. Ann D. McLAUGHLIN, Secretary of Labor, Appellee - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** January 13, 1989 - **Citations:** 864 F.2d 868; 275 U.S. App. D.C. 46; 1989 U.S. App. LEXIS 271; 1989 WL 1032 - **Precedential status:** Published - **Opinion:** Dissent by Williams - **Judges:** Wald, Starr, Williams - **Cited by:** 54 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9478543 ## How later opinions describe it (automated extraction) - holding that where an agency is following established policy, the need for a comprehensive statement of its rationale is less pressing - holding that an agency’s decision must “be sufficient to permit the court to discern the path [the agency] has taken” - noting that agency explanation must “be sufficient to permit the court to discern the path [the agency] *322 has taken” - noting that agency explanation must "be sufficient to permit the court to discern the path [the agency] has taken" ## Opinion text WILLIAMS, Circuit Judge, dissenting: I dissent because I believe that the majority’s “two-part inquiry” for labor certification has never been developed by the Secretary of Labor. While the majority’s reconciliation of the Secretary’s meandering opinions might represent a sustainable view, the Secretary never adopted it. Under the Chenery principle we affirm only on an agency’s statement of its views, not our own. See SEC v. Chenery Corp., 318 U.S. 80 , 63 S.Ct. 454 , 87 L.Ed. 626 (1943); SEC v. Chenery Corp., 332 U.S. 194, 196-97 , 67 S.Ct. 1575, 1577 , 91 L.Ed. 1995 reh’g denied, 332 U.S. 783 , 68 S.Ct. 26 , 92 L.Ed. 367 (1947) (“It will not do for a court to be compelled to guess at the theory underlying the agency’s action_”). I would remand the case to enable the Secretary to construct a coherent rule for certification of an alien claiming a prospect of employment by a corporation that he or she dominates. The majority relies on two cases in which this court has accepted a “laconic” agency effort to reconcile arguably conflicting precedents. See Maj.Op. at 873. In the cases the majority cites, however, this court looked to the agency’s reasoning, and did not substitute its own. In United Municipal Distributors Group v. FERC, 732 F.2d 202 (D.C.Cir.1984), for example, the court found the agency’s expressed reasoning to be sufficient. It did not create previously unvoiced justifications for the agency, and in fact, on another claim of alleged deviation from precedent, specifically rejected FERC’s suggestion that it do so. Id. at 211 n. 16. Similarly, in West Coast Media, Inc. v. FCC, 695 F.2d 617, 621 (D.C.Cir.1982), cert. denied, 464 U.S. 816 , 104 S.Ct. 74 , 78 L.Ed.2d 87 (1983), the court relied only on the agency’s explicit distinction of potentially conflicting precedent. Moreover, for every case accepting a laconic explanation, there is probably one (maybe ten!) requiring more. See, e.g., Consolidated Edison Co. of New York v. FERC, 823 F.2d 630, 636-42 (D.C.Cir.1987) (rejecting as inadequate reasons offered by Federal Energy Regulatory Commission for change in “abandonments” policy). Here, the ALJ’s decision made no mention of Richard’s Custom Autos, 5 ILCR 1-218 (1983), although the facts of that case appear difficult to distinguish. The majority’s efforts to do this work for the AU slide from “discerning the [Secretary’s] path” to cutting a new one. Further, if the Secretary was indeed pursuing the route my colleagues have discerned, she was surprisingly remiss in concealing it from counsel who argued the case. The court questioned counsel directly about the administrative precedents, particularly Richard’s Custom Autos, on three separate occasions. On each occasion he passed up the opportunity to articulate a reconciling test for ascertaining self-employment; instead he acknowledged that the decisions were “all over the place” and “different,” and expressly asserted that the Department at the time had treated these decisions as having “no prece-dential value.” 1 Instead, counsel simply *879 maintained that the Department did not then conceive itself as having a duty to reconcile conflicting precedents. Today, it receives the pleasant news from the majority that it has been doing it unconsciously all along. Even if the majority’s two-part test could take the place of an analysis by the Secretary, its effort to justify the “inseparability” portion of the test does not seem to me to fit very happily with the statute or with the labor certification regulations of 20 C.F.R. Part 656. The statute requires the applicant to show that (A) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of aliens who are members of the teaching profession or who have exceptional ability in the sciences or the arts), and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed. Immigration and Nationality Act, § 212(a)(14), 8 U.S.C. § 1182 (a)(14) (1982). The Secretary has defined “employment” as “permanent full-time work by an employee for an employer other than oneself.” 20 C.F.R. § 656.50 (1988). Significantly, the word “employment” appears only in subsection (B) of § 212(a)(14), so there is no need to define it at all for purposes of satisfying subsection (A); it has come to play a role, however, evidently because the Department has framed its regulations around an expectation that the applicant is headed toward work for some specific employer. See 20 C.F.R. Part 656 generally. In any event, under the majority’s explanation of how the Secretary addresses certification of aliens who are employed (and hope in the future to be employed) by a corporation over which they have substantial control, the alien must show (1) that the corporation is not a “sham” and (2) that he or she is not “inseparable” from the corporation. Maj.Op. at 873-77. By way of explanation, the majority states that the Secretary has linked the inseparability test to the requirement that the employer make a good faith search for qualified American workers to fill the position being offered to the alien. See Maj.Op. at 874 n. 7 (citing Richard’s Custom Autos, 5 ILCR at 1-218, 1-220 (1983), and Hall Enterprises, Inc., Appellant’s Appendix 68, 70). I am bound to say that I can find no suggestion of this link in the mere language of those cases. Concededly on its own, the majority offers a theory to support such a link: “[A] company that depends so heavily on the alien that it would probably shut down without him is unlikely to make any real choice between him and a ‘qualified’ United States worker.” Maj.Op. at 875. *880 In fact, the insistence on the alien’s being dispensable seems to directly defeat the statutory purpose. Proof that a worker is indispensable would seem to satisfy § 212(a)(14)(A)’s requirement of a showing that “there are not sufficient workers in the United States who are able, willing, qualified, ... and available.” The majority’s reconciliation, distinguishing between workers merely “qualified” for a task and ones who supply a corporation with “direction and life,” Maj.Op. at 875, is not clear to me. To use their example, the fact that Bill Cosby is irreplaceable on the Cosby show surely demonstrates that there is no “worker” in the United States (or in the world) “qualified” to replace him. Moreover, satisfaction of the majority’s inseparability test would surely entail satisfaction of the “business necessity” test of 20 C.F.R. § 656.21 (b)(2)(i), assuming that to be applicable. Cf Maj.Op. at 875-76. The oddity persists: the better the applicant satisfies the statutory standards, the more likely he is to be tripped up by the inseparability test. 2 Nor, frankly, does the inseparability test seem to me to satisfy the majority’s hypothesized purpose, even if we disregard its apparent inconsistency with the statute. I fail to see why the inseparability of a worker should lead a worker-controlled firm to be more lax in its search for a substitute than it otherwise would be. The employment of the alien already supplies ample motive for lethargy, and control supplies ample means. But if the worker is indispensable, the firm can pursue a relentless search without great risk of discovering a replacement. Thus, while a control test would fulfill the majority’s hypothesized purpose, and would fit 20 C.F.R. § 656 .50’s ban on self-employment (and perhaps the statute as well), inseparability seems not to. Certainly the Secretary has never explained how it would. “Discerning the path" is inevitably a rather subjective task, and with two colleagues discerning one, I would normally attribute my inability to do so to my own lack of discernment. Here, I fear, the majority has hacked a path where the Secretary left only a jungle. . The exchanges at oral argument were as follows: The court: What’s the distinction between this case and Bharadva [Richard’s Custom Autos] ...? A: Your honor, that was a case ... by an AU before the amendment of the Department's regulations in 1987 which created a Board of Alien Labor Certification Appeals. Those decisions issued by individual AUs had no prece-dential value and the cases were decided all over the place. As the result of that situation the regulations were amended in 1987 to create a Board of Alien Labor Certification Appeals to provide more consistency and uniformity in the decisions issued by the ALJs. ****** The court: ... Does the fact that the Department never gave precedential effect to AU decisions — but I take it enforced them — excuse it the obligation to explain shifts in direction, inconsistent decisions? You say that the regulations in 1987 address this problem of inconsistency, and that’s reassuring and nice, but your theory I take it is that prior to that there was no legal obligation on the part of the Department to secure consistency of adjudication? *879 A: Like I said, your honor, the ALJ decisions on similar issues were different and that was the reason why the regulations— The court: My point is the spirit is admirable but there are a line of cases that go back a very long time of this court and others insisting on consistency of agency adjudication. I take it that what you are saying is that what excuses the apparent inconsistency is simply a settled policy that no effort would be made to achieve consistency. A: I’d like to note, your honor, that decisions issued by the newly created Board of Alien Labor Certification Appeals are consistent with the decision in this particular case. The court: Well, I don’t think that quite resolves the problem. A: This decision does reflect the position and the policy of the Department of Labor in cases of this particular kind. ****** The court: You don’t seriously, I mean you haven’t endeavored to reconcile this case with Bharadva. You concede at least a potential inconsistency, a probable inconsistency? A: No, your honor, I don’t concede any inconsistency whatsoever. The court: What’s the reconciliation? A: I’m not thoroughly familiar with the facts of that particular case, your honor. The court: It had more employees, that seems to be the big difference as far as I can tell looking at the Bharadva opinion. A: I think it’s more likely for a corporation to be able to get a certification in circumstances such as these if it does have more employees, if the corporation is larger, if the alien is not so indispensable to the interests of the corporation. But that is not the situation we have here. . The Secretary’s regulation prohibiting "unduly restrictive job requirements," 20 C.F.R. 656.-21(b)(2), see Maj.Op. at 875 n. 8, is manifestly directed to a different problem — artificial job requirements concocted to create a phonily unique position. No one suggests this is true of Hall. Nor is it suggested by the Secretary that the job attributes involved here are not "objectively needed to perform the work in question.” Compare Maj.Op. at 876. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478543. Public record. Not legal advice.