Piledrivers' Local Union No. 2375 v. Smith

695 F.2d 390, 1983 A.M.C. 1435
Court of Appeals for the Ninth Circuit·Decided December 28, 1982·No. No. 82-5605·Published·Cited by 20 cases

Opinion

SOLOMON, Senior District Judge:

Piledrivers’ Local Union No. 2375 (Union), appellant, filed an action to compel the Attorney General (A.G.) and the Immigration and Naturalization. Service (INS), appellees, to enforce the Immigration and Nationality Act1 (I.N.A.) on the outer continental shelf. The district court, 541 F.Supp. 460, granted summary judgment against the Union, and the Union appealed.

In 1981, Texaco, Inc. hired Heerema Marine Contractors to install a drilling and production platform on the outer continental shelf of the United States. Heerema, a Swiss corporation, installs offshore drilling and production platforms. In connection with this work, Heerema charters a fleet of heavy lift crane ships. One of these ships, the Challenger I, is owned by a Liberian shipping company and flies the Liberian flag. The crew is Spanish and Dutch. For the Texaco installation, the crew was flown from Europe to the United States and, after completing the installation, departed immediately. Heerema agreed that it would install a platform for Chevron Oil Company on the outer continental shelf in December, 1982. Heerema will again use Challenger I and a foreign crew. Shortly after Heerema entered into the contract with Chevron, the Union filed this action.

The Union contends that its members are denied employment because foreign crew members are employed in violation of the I.N.A. The Union contends that the I.N.A. is applicable to the outer continental shelf and that foreign workers must be certified under 8 U.S.C. § 1182(a)(14) before they may be employed.2

[392]*392The district court held that (1) it lacked subject matter jurisdiction, (2) the action was not ripe for judicial review, (3) the I.N.A. does not apply to the outer continental shelf, and (4) if the I.N.A. is applicable to the outer shelf, it was not violated.

We affirm, but on different grounds.

I. SUBJECT MATTER JURISDICTION

The district court held that it lacked subject matter jurisdiction under 28 U.S.C. § 1361 because the appellees do not have a clear duty to act under the I.N.A. or under the Outer Continental Shelf Lands Act3 (O.C.S.L.A.). Mandamus jurisdiction exists when a plaintiff has a clear right to relief, a defendant has a clear duty to act and no other adequate remedy is available. Sheehan v. Army and Air Force Exchange Service, 619 F.2d 1132, 1140-41 (5th Cir.1980), rev’d on other grounds,-U.S.-, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982). This duty must be “ministerial and so plainly prescribed as to be free from doubt.” Jarrett v. Resor, 426 F.2d 213, 216 (9th Cir.1970); see also Tagupa v. East-West Center, Inc., 642 F.2d 1127, 1129 (9th Cir.1981).

Here, appellees argue that the district court lacked subject matter jurisdiction because their statutory duty is not clearly defined. In Knuckles v. Weinberger, 511 F.2d 1221 (9th Cir.1975), this court held that jurisdiction in a mandamus action is not lacking even though the statute requires construction to determine the duties it creates. Id. at 1222. If the appellees’ duty is clear after the court interprets the statute, the court has jurisdiction. We, therefore, hold that this court has jurisdiction to determine whether the appellees owe a duty to appellant, and if so, the nature of that duty.

II. RIPENESS

The district court held that this case is not ripe for adjudication because Heerema Marine Contractors is not currently working on the outer continental shelf. We must decide whether Heerema’s contract to install an offshore platform in December, 1982, creates a controversy of “sufficient immediacy and reality.” Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). We believe it does. Heerema installed an offshore platform for Texaco using the foreign crew on the Challenger I. Heerema has agreed to install another one for Chevron. It would be unwise for the Union to wait until the Heerema crew enters the country or commences to construct the platform. The estimated time to complete the installation is less than one month, and the problems connected with obtaining a restraining order or a preliminary injunction would probably be too great for the Union to overcome.

Practically all of the issues in this case are purely legal ones. We, therefore, do not believe that waiting for Heerema to engage in additional activities in the performance of its contract would “significantly advance our ability to deal with the legal issues presented nor aid us in their resolution.” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 82, 98 S.Ct. 2620, 2635, 57 L.Ed.2d 595 (1978).

III. APPLICABILITY OF THE I.N.A.

TO THE OUTER CONTINENTAL SHELF

A writ of mandamus may issue only if the A.G. and the INS owe a clear duty to the Union. The existence and nature of any duty owed depends on whether section 1182(a)(14) of the I.N.A. applies to the outer continental shelf.

Appellees contend that the 1978 amendments to the O.C.S.L.A. render the I.N.A. inapplicable to the outer continental shelf even if applicable before that time. The. O.C.S.L.A., enacted in 1953, was designed to extend “[t]he Constitution and laws and civil and political jurisdiction of the United States ... to the subsoil and seabed of the outer Continental Shelf and to all artificial islands and fixed structures which may be [393]*393erected thereon.... ” 43 U.S.C. § 1333(a)(1). A limitation on the employment of aliens on the outer continental shelf was deleted from the final version of the bill: “[S]ince all applicable Federal laws are extended to the seabed and subsoil of the outer shelf, the specific provisions respecting aliens are believed unnecessary.” S.Rep. No. 411, 83d Cong., 1st Sess. 24 (1953).

In 1978, section 1333(a)(1) was amended to include “all installations and other devices permanently or temporarily attached to the seabed.” 43 U.S.C. § 1333(a)(1) (as amended in 1978). This amendment “is meant to restate and clarify and not change existing law.” H.R.Conf.Rep. No. 1474, 95th Cong., 2d Sess. 80 (1978), reprinted in [1978] U.S.Code Cong. & Ad.News 1450, 1674, 1679. We will not lightly infer that Congress intended to remove the general applicability of the I.N.A. to the outer continental shelf. We see no irreconcilable conflict between section 1356 and the I.N.A.

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Piledrivers' Local Union No. 2375 v. Smith, 695 F.2d 390, 1983 A.M.C. 1435 (9th Cir. 1982).

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Piledrivers' Local Union No. 2375 v. Smith
695 F.2d 390 (Ninth Circuit, 1982)