Elim Church of God v. Hilda Solis
722 F.3d 1137
9th Cir.2013Background
- Elim Church of God obtained a labor certification for prospective pastor Romeo Fulga on July 1, 2002; the certification was issued under a regulation then stating certifications were "valid indefinitely."
- The Church did not file the required Form I-140 petition promptly; two retained attorneys failed to file, and the Church finally engaged new counsel in late 2008.
- In 2006–2007 DOL promulgated a rule amending 20 C.F.R. § 656.30 to impose a 180-day filing deadline for already-approved certifications (effective July 16, 2007), citing misuse of indefinitely valid certifications.
- The Church filed an I-140 on January 30, 2009; USCIS rejected it as filed after the 180-day cut-off, and the Church sued alleging impermissible retroactivity and lack of actual notice.
- District court granted summary judgment to the government; on appeal the Ninth Circuit affirmed, holding Federal Register publication provided sufficient notice and the rule was not impermissibly retroactive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DOL’s rule imposing a 180‑day expiration on previously issued labor certifications is impermissibly retroactive | Rule retroactively destroyed vested expectations in indefinite certifications and required actual individual notice before taking effect | Rule is prospective in effect (gave 180‑day grace period), DOL lacked express congressional prohibition and published rule in Federal Register, which supplies constructive notice | Court held rule not impermissibly retroactive; publication in Federal Register afforded adequate notice and the 180‑day grace period avoided attaching new legal consequences to past events |
| Whether Federal Register publication suffices as notice or DOL had to provide individualized notice | Plaintiffs: DOL’s publication was insufficient; actual notice required given vested expectations | Defendants: Publication in Federal Register is legally sufficient constructive notice; regulations provided no promise of individualized notice | Court held Federal Register publication (and the CFR) provided legally sufficient notice; reliance on expectation of individual notice was unreasonable |
| Whether precedent (Maceren / Chang) requires a different result | Plaintiffs relied on Maceren and Chang to argue retroactivity/unfair notice | Government distinguished both: Maceren involved rules that immediately invalidated pending preference petitions; Chang involved a one-sentence deadline buried in an appropriations bill and loss of judicial review | Court distinguished both and declined to extend their holdings; facts here (public rulemaking and 180‑day grace period) differ materially |
| Whether equitable estoppel bars enforcement | Plaintiffs: government’s failure to inform amounts to injustice warranting estoppel | Government: equitable estoppel against U.S. requires affirmative misconduct (deliberate lies or false promises), which is absent | Court rejected estoppel claim; no affirmative misconduct alleged or shown |
Key Cases Cited
- Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (holding administrative rules will not be given retroactive effect absent clear congressional intent)
- Landgraf v. USI Film Prods., Inc., 511 U.S. 244 (test for retroactivity: does new provision attach new legal consequences to completed events)
- Maceren v. District Director, INS, 509 F.2d 934 (one‑year validity rule held retroactive under different regulatory interplay)
- Chang v. United States, 327 F.3d 911 (lack of fair notice where a deadline was buried in legislation and individuals were not meaningfully informed)
- Socop‑Gonzalez v. INS, 272 F.3d 1176 (equitable estoppel against the government requires affirmative misconduct)