United Ass'n of Journeymen v. Reno

73 F.3d 1134, 315 U.S. App. D.C. 352

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 16, 1996
• Docket: No. 94-5256
• Status: Published

Opinions

Opinion for the court filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Chief Judge EDWARDS.

RANDOLPH, Circuit Judge:

This case returns to us after proceedings on remand pursuant to our decision in United Association of Journeymen v. Barr, 981 F.2d 1269 (D.C.Cir.1992). As in the first appeal, the principal question is whether aliens, operating from a foreign-owned derrick barge on the outer Continental Shelf, may construct oil platforms for domestic companies without complying with United States immigration laws.

I

Submerged lands on the outer Continental Shelf lying three miles seaward of, and beyond, each State’s coastline generally “appertain” to the United States and hence may be subjected to federal jurisdiction and control. 981 F.2d at 1270. In order to encourage the discovery and development of oil reserves in the region, Congress enacted the Outer Continental Shelf Lands Act of 1953 (the OCSL Act), ch. 345, 67 Stat. 462 (codified as amended, 43 U.S.C. § 1331 et seq.). In its original form, § 1333(a)(1) — one of the provisions with which we are concerned here — “extended” the Constitution and laws of the United States, “to all artificial islands and fixed structures” erected for the development of natural resources. § 4, 67 Stat. 462. In 1978 Congress amended § 1333(a)(1), deleting the phrase “fixed structures” and replacing it with “all installations and other devices permanently or temporarily attached to the seabed.” OCSL Act Amendments of 1978, Pub.L. No. 95-372, § 203, 92 Stat. 629, 635.

The extent to which § 1331(a)(1), as amended, rendered aliens working on the outer Continental Shelf subject to the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., might depend, we said in our first opinion, on another provision of the OCSL Act also added in 1978 — 43 U.S.C. § 1356, § 208, 92 Stat. 669. 981 F.2d at 1273-74. Section 1356 required the Coast Guard to issue rules requiring that “any vessel, rig, platform, or other vehicle or structure” used in regulated operations on the outer Continental Shelf be “manned or crewed ... by citizens of the United States or aliens lawfully admitted to the United States for permanent residence.” 43 U.S.C. § 1356(a) & (a)(3). To this nationality requirement, § 1356(e) made three exceptions pertinent to this ease. Americans would not have to man or crew any vessel, rig, platform, or structure “over 50 percent of which is owned by citizens of a foreign nation or with respect to which the citizens of a foreign nation have the right effectively to control.” 43 U.S.C. § 1356(c)(2). Nor would American crews be necessary if “there are not a sufficient number of citizens of the United States, or aliens lawfully admitted to the United States for permanent residence, qualified and available for such work” (43 U.S.C. § 1356(c)(1)(B)); or if “the President makes a specific finding, with respect to the particular vessel, rig, platform, or other vehicle or structure, that application would not be consistent with the national interest.” 43 U.S.C. § 1356(c)(1)(B).

The events precipitating this lawsuit occurred in 1989, when Heerema Marine Contractors, S.A., a Dutch-owned Swiss company employing nonimmigrant aliens, performed construction work for Exxon Company, U.S.A., on the outer Continental Shelf off the coast of Santa Barbara, California. Heerema installed platform “jackets” — that is, pre-manufactured steel legs and infrastructure— to serve as the foundations for two Exxon oil platforms. Heerema transported the jackets to the outer Continental Shelf and then secured them to the seabed, working from the BALDER, a semisubmersible derrick barge owned by a Heerema affiliate. The BALDER’s crew consisted of aliens. Exxon owned the jackets, but Heerema had custody and control of the jackets during the installation stage.

Two labor unions representing American construction workers sued the Attorney General, the Secretary of State, the Secretary of Transportation, the United States Coast Guard, and the Immigration and Naturalization Service. Citing § 1333(a)(1) of the OCSL Act, as amended, the unions claimed that the immigration laws barred alien employees from installing oil platforms on the outer Continental Shelf without first obtaining the appropriate immigration visas.

Under the current version of the Immigration and Nationality Act, a nonimmigrant alien may temporarily enter the United States to perform construction work if he possesses an H-2B visa. Before a consular officer may issue an H-2B visa, the employer petitioning for the alien’s admission must obtain “certification from the Secretary of Labor stating that qualified workers in the United States are not available and that the alien’s employment will not adversely affect wages and working conditions of similarly employed United States workers.” 8 C.F.R. § 214.2(h)(6)(iv)(A)(l); see also 8 U.S.C. § 1101(a)(15)(H)(ii)(b); Kooritzky v. Reich, 17 F.3d 1509 (D.C.Cir.1994).

In the first appeal we vacated the district court’s judgment in favor of the unions. The court had ruled that the immigration laws applied to the alien workers as a result of § 1331(a), the general provision extending the. laws of the United States to the outer Continental Shelf. United Ass’n of Journeymen v. Thornburgh, 768 F.Supp. 375 (D.D.C.1991). We directed the court to determine— in light of evidence regarding the construction of oil platforms and in light of the Coast Guard’s interpretation of its regulations— whether the foreign ownership exception in § 1356(c)(2) applied to vessels like the BALDER. 981 F.2d at 1274. In a thorough and well-reasoned opinion, the district court found that workers on derrick barges engaged in installing oil platforms are, under the Coast Guard’s regulations, manning and crewing the foreign-owned vessel rather than the domestically-owned platform, and therefore fall within the § 1356(c)(2) exemption. The court further ruled that the immigration laws do “not govern non-immigrant alien construction workers who are covered by the exceptions to the manning and crewing requirements found in § 1356 of the OCSL Act.” United Ass’n of Journeymen v. Reno, Civ. Action No. 90-2342, slip op. at 27 (D.D.C. June 24, 1994).

II

One of the principal issues raised in the first appeal and decided on remand is no longer in controversy. The unions do not now dispute what the district court identified as the Coast Guard’s “continuous and longstanding” view — namely, that aliens such as those on the derrick barge BALDER were manning and crewing the barge rather than the oil platform, and were thus within the terms of § 1356(c)(2). Slip op. at 21-23.

Although the issue is uneontested, it is important to give a correct depiction of the facts relating to it. It is not, for instance, accurate to say that all the work needed to install an offshore oil platform is done on the platform and that “there is no construction work being performed on the barge” (Dissent at 1141). For one thing crane operators and riggers remain on the barge throughout the installation phase. The district court so found. Slip op. at 17. For another thing, considerable work must be done before the oil platform is affixed to the ocean floor. That work is necessarily done from the derrick barge. The two main components of an oil platform are the “jacket” or base and the deck sections of the platform. It is only after the jacket is secured and the deck sections are welded onto the jacket, that workers operate mainly from the platform to complete the installation. Installation can take as little as two weeks and as long as seven months. The work may involve as many as 200 people engaged in welding, rigging, piledriving, steamfitting, pipefitting, painting, plumbing, and electrical work. During this final phase, most of the workers sleep and eat on the barge but perform no work there. Id. When installation is complete, the workers are transported back to land by boat or helicopter¹ and the barge departs with a skeleton crew.

This method of operation did not, the district court found, take the workers out of § 1356(c)(2). As used in § 1356(a)(3), “manned or crewed” refers — according to the Coast Guard’s regulations (33 C.F.R. § 141.15(a)) — to the “regular complement of the unit.” There is nothing “absurd” or “ridiculous” about the Coast Guard’s view (Dissent at 1141, 1142) and, as we have said, it is unchallenged on appeal. The “ ‘regular complement of the unit’ means those personnel necessary for the routine functioning of the unit.” 33 C.F.R. § 141.15(b). As a Coast Guard Commander explained, construction workers on derrick barges “are engaged in the business of the vessel, which is constructing offshore platforms; therefore, construction workers would be the crew members or be part of the complement of the vessel.” In statutory terms, foreign-owned derrick barges are thus exempt from § 1356(a)(3)’s requirement that any vessel, rig, platform or structure used in regulated operations on the outer Continental Shelf be “manned or crewed ... by citizens of the United States or aliens lawfully admitted to the United States for permanent residence.”

This brings us to the critical question: although foreign-owned derrick barges and their workforces operating on the outer Continental Shelf fit within the exception of § 1356(c)(2), and thus do not have to be manned or crewed by American citizens or resident aliens, must the aliens working on them nevertheless comply with the strict requirements of the Immigration and Nationality Act?

Insisting that these workers must obtain visas, the unions start from the premise that the OCSL Act’s original extension of federal law to the outer Continental Shelf rendered the Immigration and Nationality Act applicable to aliens working from a derrick barge.² Our dissenting colleague embraces the same idea. Dissent at 1142-43, 1145. Whether the 1953 version of the OCSL Act accomplished as much is far from certain. We may be certain, however, that before 1978, the immigration laws were never applied to workers on oil platforms on the outer Continental Shelf. This was apparently because the platforms were not considered permanent, a condition some thought necessary under the original § 1331(a)(1), which had extended federal law to “fixed structures.” See Memorandum Opinion for the General Counsel, Immigration and Naturalization Service, 3 Op.Off.Legal Counsel 362, 362-63 (1979). Given that view of the statute, it would certainly have followed that derrick barges used to build the platforms were not covered either. And so a quarter of a century after passage of the OCSL Act, the government could report that “no attempt has ever been made to enforce immigration laws on the Outer Continental Shelf.” Oversight on the Outer Continental Shelf Lands Act Amendments of 1978: Hearings Before the House Select Comm, on the Outer Continental Shelf, 96th Cong., 1st Sess. 182 (1980) (testimony of Deputy General Counsel Paul Schmidt, Immigration and Naturalization Service), quoted in H.R.Rep. No. 1214, 96th Cong., 2d Sess. 47 (1980).

The current § 1331(a)(1) is not as limited as the pre-1978 version. As amended in 1978, the statute now extends federal law to any installation or other device permanently or temporarily attached to the seabed.³ If we looked only to § 1331(a)(1), the union’s case would be a strong one.

The question therefore narrows to the effect of another 1978 amendment to the OCSL Act — the addition of § 1356, and particularly the foreign ownership provision in § 1356(c)(2). The unions deem this statute unimportant. They point out that the foreign ownership provision is not framed as an exception to the extension of federal laws (including the immigration laws) to the outer Continental Shelf. By its terms, § 1356(c)(2) simply creates an exemption from § 1356(a)(3)’s requirement that every “vessel, rig, platform, or other vehicle or structure” have a crew consisting of citizens and resident aliens. While a vessel like the BALDER may thereby escape the manning and crewing strictures of § 1356(a)(3), the unions believe its crew members would remain subject to the Immigration and Nationality Act, about which § 1356 is silent.

The unions’ argument is plausible but not cogent and we think the district court rightly rejected it. Section 1356 may be read as the unions read it, yet it may also be read as the Justice Department and the State Department have read it since its enactment nearly two decades ago. To say that no vessel or structure may have a crew of noncitizens or nonresident aliens unless it is foreign-owned, is to say — or at least, to suggest rather strongly — that foreign-owned vessels and structures may have such crews. Sixteen years ago, when the ink was scarcely dry on the OCSL Act amendments, the Justice Department carefully studied this issue at the request of the Immigration and Naturalization Service. The Justice Department concluded that § 1356 is “a self-contained statement of the extent to which principles of immigration control are to be applied”: if the crew of a foreign-owned vessel or structure need not consist of citizens or resident aliens, the Immigration and Nationality Act imposes no further restrictions. 3 Op.Off.Legal Counsel at 366. This contemporaneous interpretation by the agency of government responsible for administering the immigration laws deserves considerable respect, not only because of the Justice Department’s responsibilities and expertise, but also because the reasons supporting its conclusion are compelling. See, e.g., NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Co., — U.S. -, -, 115 S.Ct. 810, 813 (1995); National Ass’n of Regulatory Util. Comm’rs v. SEC, 63 F.3d 1123, 1126 (D.C.Cir.1995).⁴

Foremost among those reasons is that applying the Immigration and Nationality Act despite § 1356 would be treating that provision, and the exceptions written in it, as nonsensical. Consider § 1356(c)(1)(A). This states that if a contract in effect before September 1978 (the date of the amendments) required manning by aliens, the vessel or structure could continue to be so manned. The evident purpose was to “avoid any disruptions in 0[uter] C[ontinental] S[helf] activities.” H.R.Rep. No. 590, 95th Cong., 1st Sess. 176 (1977), 1978 U.S.C.C.A.N. 1450, 1582; H.R.Conf.Rep. No. 1474, 95th Cong., 2d Sess. 124, reprinted in 1978 U.S.C.C.A.N. 1674, 1723. Yet if one accepted the unions’ position and the position of our dissenting colleague, disruptions would have been inevitable: despite § 1356(c)(1)(A), the general immigration law would have forced the owners of each vessel and structure covered by such contracts to replace their crews with American citizens and resident aliens (assuming qualified domestic workers were available). The exemption granted in § 1356(c)(1)(A) would then, through the interpretation of the unions and of the dissent, be rendered essentially worthless.

The last clause of § 1356(c)(2) would also be drained of meaning if we adopted the unions’ and the dissent’s view. Whenever a foreign government imposes its own national manning requirements for the development of its offshore oil and gas, § 1356(c)(2) permits the President to respond by revoking the exemption for vessels and structures owned by citizens of that foreign nation. But if the unions and the dissent were right, the President’s removal of the exemption would amount to an empty gesture: for all practical purposes, the Immigration and Nationality Act already would have forced the foreign owners to employ American crews on their vessels and structures. Much the same may be said of § 1356(c)(1)(C), which allows the President to exempt even American-owned vessels and structures from the manning and crewing requirement if this would be in the national interest. Through these provisions and through § 1356 in general, Congress sought to “reconcile the dual concerns of providing the fullest employment for Americans in U.S. 0[uter] C[ontinental] S[helf] activities and eliminating to the fullest possible extent the likelihood of retaliation by foreign nations against American workers in foreign offshore activities.” H.R.Conf.Rep. No. 1474, supra, at 123, 1978 U.S.C.C.A.N. at 1722. The district court put the point succinctly: “If alien workers on the 0[uter] C[ontinental] S[helf] were subject to both § 1356 and the [Immigration and Nationality Act], the scales would invariably tip in favor of the first concern, thereby disrupting the balance of interests Congress hoped to create.” Slip op. at 27.

This conclusion gains further support from § 1356(c)(1)(B), a provision exempting units from the manning and crewing requirements when there are insufficient citizens and permanent residents qualified and available to perform the necessary work. The conference report observed, correctly, that this exception incorporates “virtually the present standard of the immigration law.” H.R.Conf.Rep. No. 1474, supra, at 124, 1978 U.S.C.C.A.N. at 1723. “Implicit in that statement, however, appear[s] to be the assumption that an exception, independent of the immigration laws, is being created.” 3 Op.Off.Legal Counsel at 367.

It is true that the union’s interpretation would not deprive § 1356 of all meaning: § 1356 would still operate with respect to free floating vessels, which are not covered by § 1333(a)(1) (it extends federal law to the seabed and artificial islands and installations permanently or temporarily attached to the seabed). But that is not exactly a point in the unions’ favor. To say that § 1356 would have some residual effect in one limited area, is to admit that the statute is being stripped of any effect everywhere else. Section 1356 applies to “any ... rig, platform, or other ... structure,” not just to “vessels.” If, as the unions suppose, the immigration laws govern the use of nonimmigrant workers on the outer Continental Shelf despite § 1356, then Congress acted nonsensically in subjecting such installations and anchored vessels to the regulatory system, and the exceptions, set forth in § 1356. It is, in short, not enough that the union’s position allows one portion of § 1356(c)(2) to survive, the portion, that is, dealing with free-floating vessels. The statute should be read so that all of it has effect — so that, in other words, the exemption for foreign-owned derrick barges is meaningful. See, e.g., Gustafson v. Alloyd Co., — U.S. -, -, 115 S.Ct. 1061, 1069 (1995); Railway Labor Executives’ Ass’n v. National Mediation Bd., 29 F.3d 655, 665 (D.C.Cir.) (in banc), amended, 38 F.3d 1224 (D.C.Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1392, 131 L.Ed.2d 243 (1995); Abourezk v. Reagan, 785 F.2d 1043, 1054 (D.C.Cir.1986), aff'd by an equally divided court, 484 U.S. 1, 108 S.Ct. 252, 98 L.Ed.2d 1 (1987).

It is not accurate to describe, as the unions do, the district court’s reading of the OCSL Act as a partial repeal of § 1333(a)(1). See Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2474, 2481-82, 41 L.Ed.2d 290 (1974). Section 1356 and the amendment to § 1333(a)(1) were enacted simultaneously. The district court thus had to reconcile two seemingly inconsistent provisions in the same legislation; the court was not determining whether one provision “repealed” the other. Furthermore, § 1333(a)(1) is written in general terms. It does not expressly refer to nonimmigrant workers or to the immigration laws. In contrast, § 1356 lays out a detailed system governing who may work on vessels and structures conducting regulated activities on the outer Continental Shelf, a system drawing distinctions between citizens and resident aliens and other workers and vesting discretion in the President to restrict or relax § 1356’s rules on the composition of the workforce. The canon of statutory construction dictating that specific statutory provisions govern general ones would therefore lead us to favor § 1356 over § 1333(a)(1). See, e.g., Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 112 S.Ct. 2031, 2037, 119 L.Ed.2d 157 (1992); Techniarts Eng’g v. United States, 51 F.3d 301, 304 (D.C.Cir.1995). The Supreme Court has instructed that if “there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” See, e.g., Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445, 107 S.Ct. 2494, 2499, 96 L.Ed.2d 385 (1987) (internal quotations omitted). No such clear intention emerges here.

Because we agree with the district court that the Immigration and Nationality Act does not apply to those who are manning or crewing foreign-owned derrick barges qualifying for the exemption set forth in § 1356(c)(2),⁵ the judgment is affirmed.

1 . This is doubtless why, despite the view of the Immigration and Naturalization Service that the immigration laws do not apply on the outer Continental Shelf, alien workers on the BALDER held B-l visas. This type of visa is available to a nonimmigrant alien who is "visiting the United States temporarily for business or temporarily for pleasure.” 8 U.S.C. § 1101(a)(15)(B). ("Business” does not include construction work. 8 C.F.R. § 214.2(b)(5).) See United Ass'n of Journeymen v. Barr, 981 F.2d at 1272 n. 2.

2 . Our first opinion explained why, in the absence of such an extension, the immigration laws would not apply to the outer Continental Shelf: nonimmigrant aliens arriving there would not be entering the United States. 981 F.2d at 1271 n. 1. “Entry” is a term of art in the immigration laws. See, e.g., Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963); 1 Charles Gordon, et al., Immigration Law and Procedure § 11.01, at 11-1 (1995). The Immigration and Nationality Act defines "entry” to mean "any coming of an alien into the United States, from a foreign port or place-" 8 U.S.C. § 1101(a)(13). '“United States' ... when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States.” 8 U.S.C. § 1101(a)(38). The term "continental United States” is defined as follows; "Whenever the phrase 'continental United States' is used in any law of the United States enacted after the date of enactment of this Act [June 25, 1959], it shall mean the 49 States on the North American Continent and the District of Columbia, unless otherwise provided.” 1 U.S.C. § 1 note.

3 . 43 U.S.C. § 1331(a) now provides:

The Constitution and laws and civil and political jurisdiction of the United States are hereby extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a state: Provided, however, That mineral leases on the outer Continental Shelf shall be maintained or issued only under the provisions of this subchapter.

4 . The dissent finds "significant" several post-enactment statements in a House committee report attesting to the personal opinions of the committee's chairman about what he believed the 1978 amendments had accomplished. Dissent at 1144-45. It is bad enough to interpret a statute on the basis of what a later Congress says about it. See United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 331-32, 4 L.Ed.2d 334 (1960). It is far worse to rely on the views — not of a later Congress — but of a few members of a later Congress. During this committee’s oversight hearing, a Justice Department representative, confronted with statements similar to those contained in the dissent, gave the proper response. The statements merely serve, he said, as "an example of why you really cannot use the personal and anecdotal experience of someone in the legislative process as part of statutory interpretation.” Oversight on the Outer Continental Shelf Lands Act Amendments of 1978, supra, at 177 (testimony of Jack M. Goldklang).

5 . Citing Montana v. United States, 440 U.S. 147, 154, 99 S.Ct. 970, 974, 59 L.Ed.2d 210 (1979), and United Ass’n of Journeymen, Local 342 v. Valley Eng’rs, 975 F.2d 611, 615 (9th Cir.1992), the government claims that Piledrivers’ Local Union No. 2375 v. Smith, 695 F.2d 390, 393 (9th Cir.1982)—which decided the same legal issues as those raised here — collaterally estops the unions even though the unions were not named as parties. Because our decision on the merits is the same as that in Piledrivers', we do not express any view on the preclusive effect of the Ninth Circuit's ruling.