Elim Church of God, et al v. Hilda Solis, et al

Filing

FILED OPINION (SIDNEY R. THOMAS, JACQUELINE H. NGUYEN and RAYMOND J. DEARIE) AFFIRMED. Judge: SRT Authoring, FILED AND ENTERED JUDGMENT. [8697116]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
*

ELIM CHURCH OF GOD,
Washington State Non-Profit
Corporation; ROMEO FULGA,
Plaintiffs-Appellants,

No. 12-35029
D.C. No.
2:10-cv-01001RSM

v.
SETH D. HARRIS, Acting
Secretary of the United States
Department of Labor;*
ALEJANDRO MAYORKAS,
Director of United States
Citizenship and Immigration
Services; UNITED STATES OF
AMERICA,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted
May 9, 2013—Seattle, Washington

*

Acting Secretary of Labor Seth D. Harris is substituted for his
predecessor, Hilda L. Solis, pursuant to Federal Rule of Appellate
Procedure 43(c)(2).

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ELIM CHURCH OF GOD V. HARRIS
Filed July 10, 2013
Before: Sidney R. Thomas and Jacqueline H. Nguyen,
Circuit Judges, and Raymond J. Dearie, Senior District
Judge.**
Opinion by Judge Thomas

SUMMARY***

Immigration
The panel affirmed the district court’s order granting
summary judgment in favor of the Department of Labor and
the United States Citizenship and Immigration Service, in
Elim Church of God’s action challenging the government’s
denial of an application for labor certification the Church
filed on behalf of a youth pastor.
The panel held that the Department of Labor’s
enforcement of a new regulation providing that the labor
certification, valid indefinitely when issued to the Church,
now expired 180 days after the new regulation became final,
did not constitute an impermissible retroactive rule. The
panel held that publication of the proposed and final rules in
the Federal Register afforded adequate notice of the revision,

**

The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
***

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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and that actual notice was not required. The panel also held
that the regulation’s text did not preclude the government
from setting the expiration date.

COUNSEL
Steven P. Recor, James F. Pleasants (argued), Bellevue,
Washington, for Plaintiffs-Appellants.
Stuart F. Delery, Acting Assistant Attorney General, Civil
Division, Elizabeth J. Stevens, Assistant Director, District
Court Section, Office of Immigration Litigation, Aram A.
Gavoor (argued), Trial Attorney, District Court Section,
Office of Immigration Litigation, U.S. Department of Justice,
Washington, D.C., for Defendants-Appellees.

OPINION
THOMAS, Circuit Judge:
Sometimes, as Delmore Schwartz and Tolian Soran have
observed, “time is the fire in which we burn.” The Elim
Church of God wanted to employ Romeo Fulga, who was
present in the United States on a student visa, as a youth
pastor. However, in dreams begin responsibilities and, in
order to work at the Church, Fulga was required to obtain an
employment-based immigrant visa. As a first step, the
Church applied for and received a labor certification from the
Department of Labor that was valid indefinitely when issued.
Unfortunately, the Church did not immediately proceed with
the subsequent steps for Fulga to obtain an employment visa.
In the interim, the Department of Labor issued new

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regulations providing that a labor certification expired after
180 days unless a visa application was filed or, in the case of
labor certification holders like the Church, 180 days after the
regulation became final. The Church did not act until well
after that period. When it did finally act, the Church
discovered that its certification had expired.
The Church contends that it was entitled to personal
notice and that the regulation had an impermissible
retroactive effect. However, we agree with the district court
that publication of the proposed and final rules in the Federal
Register afforded adequate notice of the revision, and that the
regulation was not impermissibly retroactive.
I
Our unfortunate prospective pastor, Romeo Fulga, is a
native and citizen of Romania who came to the United States
in 1991 on a student visa. After transferring schools several
times, Fulga eventually settled in Bellevue, Washington. In
2000, Fulga began attending Elim Church of God in Bellevue
and started volunteering at the Church with the hope of
eventually becoming a pastor. Soon after, church officials
started the process of employing Fulga as a youth pastor.
The first step in the three-step process to obtain
an employment-based immigrant visa is to apply for a
labor certification from the United States Department of
Labor. The Department must certify that there are
not sufficient American workers to perform the work and
that employing an alien will not adversely affect the
wages and working conditions of American workers.
8 U.S.C. § 1182(a)(5)(A)(I). The Church submitted an
application for a labor certification on Fulga’s behalf. The

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Department approved the application, and the Church
received the labor certification dated July 1, 2002.
Once a labor certification is approved, the employer must
file an Immigrant Petition for Alien Worker, known as a
Form I-140, so that United States Citizenship and
Immigration Services (USCIS) can classify the worker in the
appropriate preference category.1 Fulga and church officials
filled out a Form I-140 and provided supporting
documentation to their attorney. However, their attorney
never filed the I-140 petition. Fulga and the Church then
hired a new attorney, who also never acted on their petition.
Finally, in late 2008, Fulga and the Church hired their current
attorney, who informed them that the odds were against them
and the situation grim because USCIS would probably deny
the Church’s I-140 petition due to an intervening change in
the regulations.
When the Department approved the Church’s labor
certification in 2002, the applicable regulation provided,
“Except as provided in paragraph (d) of this section, a labor
certification is valid indefinitely.” 20 C.F.R. § 656.30(a)
(2002).2 Thus, until 2006, a granted labor certification
existed in a state unaffected by time.

1

The third step in the process is for the alien to adjust his or her status
or to obtain an immigrant visa. Once USCIS has approved the I-140
petition and the alien’s priority date becomes current, the alien can adjust
his or her status by filing the appropriate form with USCIS.
2

Paragraph (d) provides that labor certifications obtained by “fraud or
willful misrepresentation” are subject to “invalidation.” 20 C.F.R.
§ 656.30(d).

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But what is given by the government can sometimes be
taken away and, in 2006, the status of labor certifications
unbounded by time was disrupted.
Prompted by
circumstances fed by improper use of labor certifications, the
Department published a notice of proposed rulemaking
detailing a potential change to the regulation designed in part
to address an emerging black market for approved labor
certifications. Labor Certification for the Permanent
Employment of Aliens in the United States, 71 Fed. Reg.
7656, 7657–58 (proposed Feb. 13, 2006) (codified as
amended at 20 C.F.R. pt. 656). The notice stated that because
the Department “has traditionally allowed employers to
substitute an alien named on a pending or approved labor
certification with another prospective alien employee,” and
because “labor certifications are valid indefinitely,” labor
certifications had become “a commodity which can be sold
by unscrupulous employers, attorneys, and agents to those
seeking a ‘green card.’” Id. at 7657. The proposed rule
would prohibit substitution and provide that a certification
would expire if not filed with an I-140 petition within 45 days
of the Department’s approval of the certification. Id. at 7663.
Labor certifications that were already approved would expire
“if not filed in support of a petition” within 45 days of the
effective date of the final rule. Id.
On May 17, 2007, the Department published its final rule.
See Labor Certification for the Permanent Employment of
Aliens in the United States, 72 Fed. Reg. 27,904 (May 17,
2007) (codified at 20 C.F.R. pt. 656). The final rule amended
20 C.F.R. § 656.30 to provide that a labor certification
expires if not filed within 180 days of the approval, rather
than the 45 days in the proposed rule. 72 Fed. Reg. at 27,946.
The Department stated that limiting the period of validity of
a certification “more closely adheres” to the statutory text

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requiring the determination about the availability of and
effects on American workers “to be made at the time of the
application for admission” than would an indefinite period of
validity. Id. at 27,924. Labor certifications approved before
July 16, 2007 (the effective date of the rule) would “expire[]
if not filed in support of a Form I-140 petition with the
Department of Homeland Security within 180 calendar days
of July 16, 2007.” Id. at 27,946; 20 C.F.R. § 656.30(b)(2)
(2007). Thus, as of July 16, 2007, time began running out on
the Church’s labor certification, with the application process
left unfinished.
A year and a half after the regulation’s effective date, on
January 30, 2009, the Church filed an I-140 petition on
Fulga’s behalf, which USCIS rejected. Fulga and the Church
then sued the Department and USCIS, alleging that enforcing
the 180-day deadline without providing actual notice
constituted an impermissible retroactive rule.
On cross-motions for summary judgment, the district
court granted summary judgment for the government
defendants. The court held that the regulation’s text did not
preclude the government from setting an expiration date.
Furthermore, it held that publication of the proposed and final
rules in the Federal Register afforded the plaintiffs “legally
sufficient” notice.
II
A
Whether a regulation may be applied retroactively is a
question of law that we review de novo. Sinotes-Cruz v.
Gonzales, 468 F.3d 1190, 1194 (9th Cir. 2006). We begin

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with the fundamental principle that “[r]etroactivity is not
favored in the law.” Bowen v. Georgetown Univ. Hosp., 488
U.S. 204, 208 (1988). Therefore, “administrative rules will
not be construed to have retroactive effect unless their
language requires this result.” Id. We use a two-step process
to determine whether a statute or rule should apply
retroactively. First, we ask whether there is a “clear
indication from Congress” that a law should apply
retroactively. Hernandez de Anderson v. Gonzales, 497 F.3d
927, 935 (9th Cir. 2007). “When, as here, an administrative
rule is at issue, the inquiry is two-fold: whether Congress has
expressly conferred power on the agency to promulgate rules
with retroactive effect and, if so, whether the agency clearly
intended for the rule to have retroactive effect.” Durable
Mfg. Co. v. U.S. Dep’t of Labor, 578 F.3d 497, 503 (7th Cir.
2009); see also Bowen, 488 U.S. at 208–15 (holding that the
Medicare Act did not grant agency the authority to
promulgate retroactive cost limits); Mejia v. Gonzales, 499
F.3d 991, 997 (9th Cir. 2007) (holding that regulation did not
clearly state that it applied retroactively).
If Congress has not granted the authority to promulgate
retroactive rules, we then assess “whether application of the
regulation would have a retroactive effect.” Mejia, 499 F.3d
at 997. If so, we do not apply the regulation to the plaintiffs
because we presume that, absent a “clear expression” of
congressional intent, Congress intended the regulation to
apply only prospectively. See Camins v. Gonzales, 500 F.3d
872, 881 (9th Cir. 2007).
In our case, the government properly concedes that
Congress did not expressly grant the Department of Labor
authority to promulgate retroactive rules of this sort.
Therefore, we proceed to the second step of the analysis:

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whether the regulation has a retroactive effect and the
Church’s labor certification can be restored to its prior state.
A rule that “‘takes away or impairs vested rights acquired
under existing laws, or creates a new obligation, imposes a
new duty, or attaches a new disability, in respect to
transactions or considerations already past, must be deemed
retrospective.’” Landgraf v. USI Film Prods., Inc., 511 U.S.
244, 269 (1994) (quoting Soc’y for Propagation of the Gospel
v. Wheeler, 22 F. Cas. 756, 767 (Story, Circuit Justice,
D.N.H. 1814)). A “statute does not operate ‘retrospectively’
merely because it is applied in a case arising from conduct
antedating the statute’s enactment, or upsets expectations
based in prior law.” Id. (internal citation omitted); see also
Bowen, 488 U.S. at 219–20 (Scalia, J., concurring). “Rather,
the court must ask whether the new provision attaches new
legal consequences to events completed before its
enactment.” Landgraf, 511 U.S. at 269–70. In making this
determination, courts rely on their “sound instincts,” and
“familiar considerations of fair notice, reasonable reliance,
and settled expectations offer sound guidance.” Id. (internal
quotation marks, citation and alterations omitted).
Plaintiffs concede that the Department could impose an
expiration date for labor certifications that had already been
issued, but argue that the Department could do so only if it
provided actual notice to those who received certifications
under the prior regulation. Therefore, our analysis focuses on
whether the Department provided “fair notice” of the change
in regulations.
Typically, publication of a document in the Federal
Register is “sufficient to give notice of the contents of the
document to a person subject to or affected by it.” 44 U.S.C.

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§ 1507; see also United States v. Wilhoit, 920 F.2d 9, 10 (9th
Cir. 1990) (“Congress has provided that proper publication in
the Federal Register shall act as constructive notice to all of
those affected by the regulation in question.”); Friends of
Sierra R.R., Inc. v. I.C.C., 881 F.2d 663, 667-68 (9th Cir.
1989) (“Publication in the Federal Register is legally
sufficient notice to all interested or affected persons
regardless of actual knowledge or hardship resulting from
ignorance.”). The text of the regulations governing labor
certifications contains no suggestion that, contrary to this
normal practice, affected parties will receive actual notice of
changes to the regulations. The prior regulation’s statement
that a labor certification was “valid indefinitely,” 20 C.F.R.
§ 656.30(a) (2002), does not address what type of notice the
Department would provide if it decided to change the
indefinite period of validity, a change that the plaintiffs
acknowledge the Department could make.
Nor does another regulation concerning the revocation of
approved labor certifications support the plaintiffs’ argument.
That regulation, 20 C.F.R. § 656.32, provides that if the
Department seeks to revoke a labor certification, it will send
the employer a “Notice of Intent to Revoke” the certification
containing “a detailed statement of the grounds for revocation
and the time period allowed for the employer’s rebuttal.” Id.
§ 656.32(b)(1). But this regulation is inapposite because the
Department did not seek to revoke the plaintiffs’ labor
certification; rather, it established an expiration date. Even
assuming that § 656.32 establishes an expectation for the type
of notice employers will receive if the Department seeks to
revoke a labor certification, the regulation does not address
what type of notice affected parties would receive if the
Department took action other than revoking a certification.
Therefore, to the extent the plaintiffs relied upon this

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regulation in assuming they would receive actual notice of a
change to the certification’s period of indefinite validity, such
reliance was unreasonable.
It would be incongruous for us to hold that publication in
the Federal Register did not afford sufficient notice of this
change when the plaintiffs argue that regulations published in
the Federal Register (and the Code of Federal Regulations)
created a settled expectation or vested interest that they would
receive individual notice of the establishment of an expiration
date. Furthermore, the text of the statute does not foreclose
the establishment of an expiration date for labor
certifications. We have recognized that a one-year period of
validity is reasonable “in view of the Secretary’s duty to
advise the Attorney General of the condition of a constantly
changing labor market.” Maceren v. District Director, INS,
509 F.2d 934, 939 (9th Cir. 1974); see also Durable Mfg.,
578 F.3d at 502 (holding that 2007 regulation “comports with
the textual mandate” of 8 U.S.C. § 1182(a)(5)(A)(i)(I)); 72
Fed. Reg. at 27,924 (finding a limited period of validity
“more closely adheres to the letter of the law”).
B
Contrary to the plaintiffs’ argument, our decisions in
Maceren and Chang v. United States, 327 F.3d 911 (9th Cir.
2003), do not dictate a different result. In Maceren, we held
that a Department of Labor regulation imposing a one-year
period of validity on labor certifications that previously had
been valid indefinitely could not be applied retroactively to
the plaintiff. 509 F.2d at 938–41. Maceren had obtained a
labor certification, filed the appropriate petition, and was
waiting for an immigrant visa number to become available.
Id. at 937. However, our holding in Maceren depended on

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that regulation’s interaction with a subsequent regulation
providing that approval of a preference status would remain
valid only so long as the labor certification was valid and
unexpired. Id. at 938.3 These two regulations had the effect
of immediately invalidating Maceren’s preference petition
when the later regulation went into effect. See id. at 939–40.
Thus, the regulations “attache[d] new legal consequences to
events completed before [their] enactment.” Landgraf, 511
U.S. at 270.
Here, the regulation at issue, 20 C.F.R. § 656.30, attached
no new legal consequence to any completed transaction
because the regulation provided a grace period of 180 days
from the effective date of the final rule to file a previously
approved labor certification in support of a visa petition.
Moreover, in Maceren, we reasoned that the government’s
interpretation of the relationship between the two regulations
would produce an absurd result. 509 F.2d at 940–41. In this
case, the planets align differently because there are no
conflicting regulations that counsel against applying the plain
text of § 656.30.
Nor does our decision in Chang mandate an actual notice
requirement in this case. Chang concerned a challenge to the
Immigration and Naturalization Service’s change of rules
governing the requirements to obtain employment-based
investor visas. 327 F.3d at 915–16. While the plaintiffs’ case
was on appeal to this court, Congress enacted a law providing
that aliens whose investor visa petitions had been rejected

3

The prior regulation required aliens such as Maceren to renew their
preference petition annually, but the one-year period of validity ran from
the time the labor certification was issued rather than the date that the
preference petition was approved. Maceren, 509 F.2d at 937–38.

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could file for reconsideration within 60 days, which some of
the Chang plaintiffs did not do. Id. at 918–19. The
government argued that those plaintiffs failed to exhaust their
administrative remedies. Id. at 919. We disagreed, holding
that the statute did not apply retroactively because the
plaintiffs lacked “fair notice” of this new requirement. Id. at
921. “[B]eyond publication of the potentially life-altering
one-sentence deadline within a massive appropriations bill,
the government . . . took no steps to notify these individuals
that they had no more than sixty days to preserve any
possibility of judicial review of their case.” Id. We did “not
explore whether providing a longer amount of time, or
announcing the new policy more prominently, or individually
notifying those to be affected – since the government had that
information readily at hand – would have been necessary or
sufficient to constitute fair notice.” Id.
The factors that controlled our decision in Chang are not
present in this case. In our case, the government did not
announce the change in a single sentence in a massive bill,
but announced it in two public notices that focused
extensively on the establishment of the new expiration date.
See 71 Fed. Reg. at 7657–60, 7663; 72 Fed. Reg. at 27,905,
27,907, 27,924–25, 27,939–42, 27,946. Moreover, because
the new regulation provided 180 days from the effective date
of the final rule, it provided a longer notice period than the
60-day deadline at issue in Chang. Additionally, applying the
60-day deadline to the Chang plaintiffs would have
permanently cost them their right to judicial review. Here,
while the plaintiffs will permanently lose their claim to this
particular labor certification, they can still apply for a new
labor certification. Finally, while the Chang plaintiffs were
already in litigation when Congress enacted the 60-day
deadline, here the regulation was promulgated before

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litigation (and, indeed, prompted the lawsuit). Therefore,
Chang does not require that the government provide actual
notice in this case.
III
The plaintiffs also argue that the government should be
equitably estopped from enforcing the new regulation.
However, equitable estoppel can be applied against the
United States only where the government engages in
“affirmative misconduct,” which is defined “to mean a
deliberate lie or a pattern of false promises.” Socop-Gonzalez
v. INS, 272 F.3d 1176, 1184 (9th Cir. 2001) (en banc). The
plaintiffs do not identify any affirmative misconduct, and the
failure to inform an individual of his or her legal rights does
not constitute affirmative misconduct warranting equitable
estoppel relief. Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir.
2000).
IV
In sum, the regulation establishing an expiration date for
labor certifications did not have retroactive effect. The
Church’s labor certification unfortunately expired when it did
not take timely action after the effective date of the new
regulation. We therefore affirm the district court’s grant of
summary judgment for the government.
AFFIRMED.

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