Railway Labor Executives' Association v. United States Railroad Retirement BoardRailway Labor Executives' Association v. United States Railroad Retirement Board
Opinion for the Court filed by Circuit Judge WALD.
The Railway Labor Executives’ Association (“RLEA”) seeks review, pursuant to
I. Background
Together the RRA and RUIA provide a system of retirement and unemployment benefits for railroad workers. Both Acts define an employee as an individual in the service of an employer for compensation or an employee representative.
[A]n individual not a citizen or resident of the United States shall not be deemed to be in the service of an employer when rendering service outside the United States to an employer who is required under the laws applicable in the place where the service is rendered to employ therein, in whole or in part, citizens or residents thereof.
The Canadian Immigration Act provides that any noncitizen or nonresident of Canada seeking to enter Canada for the purpose of engaging in employment must obtain an employment authorization prior to appearing at a port of entry. 1 Immigration Act, 1976 2d Sess., ch. 52, § 10. Regulations issued by the Canadian Minister of Employment and Immigration pursuant to the Immigration Act, 1976 2d Sess., ch. 52, § 115(1)(j), establish the guidelines for the issuance of employment authorizations. See 112 Can.Gaz., Part II, No. 5, §§ 18-20 (March 8, 1978). Section 20 of the regulations provides in relevant part:
(1) An immigration officer shall not issue an employment authorization to a person if,
(a) in his opinion, employment of the person in Canada will adversely affect employment opportunities for Canadian citizens or permanent residents in Canada;
(3) In order to form an opinion for the purposes of paragraph (1)(a), an immigration officer shall consider
(a) whether the prospective employer has made reasonable efforts to hire or train Canadian citizens or permanent residents for the employment with respect to which an employment authorization is sought;
(b) the qualifications of the applicant for the employment for which the employment authorization is sought; and
(c) whether the wages and working conditions offered are sufficient to attract and retain in employment Canadian citizens or permanent residents.
(4) For the purpose of considering the question set out in paragraphs (3)(a) and (c), an immigration officer shall consult an officer of the National Employment Service serving the area in which the person seeking an authorization wishes to engage in employment. 2
Id. at § 20 (emphasis added).
On the basis of the above provisions of the Canadian Immigration Act, and regulations issued thereunder, the General Counsel of the Railroad Retirement Board issued Legal Opinion L-83-79, 3 on March 25, 1983, stating:
I am of the opinion that this statute constitutes a law requiring the employment of Canadian citizens or permanent residents “in whole or in part” for railroad operations in Cаnada. Consequently, for [sic] months after April 9, 1978, service in Canada by Canadian citizens and permanent residents of Canada employed by United States railroads operating in Canada is not covered under the Railroad Retirement Act and the Railroad Unemployment Insurance Act by virtue of sections 1(d)(3) of the Railroad Retirement Act and 1(e) of the Railroad Unemployment Insurance Act.
On June 3, 1983, the RLEA sought reconsideration of the Board’s decision pursuant to
On December 12, 1983, the Deputy General Counsel issued Legal Opinion L-83-79.2 denying the RLEA’s request for reconsideration but permitting the RLEA request to be considered an appeal to the three-member Board pursuant to
II. Discussion
The Board frames the issue in this case as: “[W]hether the Board’s interpretation of the RRA and the RUIA, the statutes which it administers, as they are affected by Canadian law and regulations and Canada’s application of them to United States companies, has a reasonable basis in law.” Brief for Board at 10. The RLEA, on the other hand, argues that the Board’s decision was based upon a determination of foreign law and as such is entitled to no
The Board’s determination of Canadian law is entitled to no deference from this court.
Bamberger v. Clark,
It is well established that an agency's construction of its own governing statutes is entitled to considerable deference.
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
— U.S. —,
If ... the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, ... the question for the court is whether the agency’s answer is basеd on a permissible construction of the statute.
... Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.
Id. at 2782 (footnotes omitted). Thus, when an agency formulates standards or policy pursuant to an implicit delegation of authority, Chevron directs us to uphold the agency’s interpretation of its own governing statute if “reasonable.” Id.
Congress, in the RRA and RUIA, has granted the Board broad authority to exercise the duties and powers necessary to administer and enforce the Acts, including the authority to determine which employees are covered.
See
Although the RLEA’s plain meaning argument is plausible and even superficially appealing, we ultimately reject it. The language of
In sum, the plain words contained in the RRA and RUIA exceptions to covered service do not compel us to adoрt any particular meaning. Moreover, nothing in the legislative history of these provisions gives us any clue as to the meaning Congress intended.
9
Finally, this appears to be the first time the Board has been called upon
Our task in determining the reasonableness of the Board’s decision is not to interpret the statutes as we think best but only to inquire as to whether thе Board’s interpretation is “ ‘sufficiently reasonable’ to be accepted by a reviewing court.”
Federal Election Commission v. Democratic Senatorial Campaign Committee,
At a minimum, the Board’s path of analysis should have included an articulation of its interpretation of
In the initial opinion issued on March 25, 1983, the General Counsel offered little in the way of reasoned analysis but appeared to be saying that the Canadian regulations on their face require the hiring of Canadians. See supra p. 859 & n. 4. The Deputy General Counsel, in denying the RLEA’s request for reconsideration, states that to accept the position advanced by the Canadian lawyer, Mr. Wright, in his letter submitted by the RLEA, “one has to give an extremely literal interpretation to the word ‘required,’ as used in the sections of the Acts under consideration.” Appendix at 31. The Deputy General Counsel, however, then proceeds to discuss the Canadian regulations without ever specifying the “appropriate” interpretation of the word “required.” The Deputy General Counsel concludes that “the practical result of the [Canadian] regulations is to ‘require’ an employer in Canada to fill most of his positions with Canadians.” Appendix at 32 (emphasis added). This language seems to imply that “require” may mean an express statutory provision or a statutory provision which, while not express, in effect has the result of requiring the hiring of local citizens or residents. In short, the Board never articulates a definitive interpretation of the requirement language contained in the coverage exceptions. 11
Even if the Board could be construed to have articulated an adequate standard for assessing whether provisions of foreign
III. Conclusion
For the foregoing reasons, we vacate the Board’s decision and remand for further proceedings consistent with this opinion.
Vacated and remanded.
Notes
. The regulations issued pursuant to the Immigration Act specifically state that within certain exceptions “no person, other than a Canadian citizen or permanent residеnt, shall engage or continue in employment in Canada without a valid and subsisting employment authorization.” 112 Can.Gaz., Part II, No. 5, § 18(1) (March 8, 1978).
. This is the initial wording of § 20(4) relied upon by the General Counsel in Legal Opinion L-83-79. See Petitioner’s Appendix at 8 (Petitioner's Appendix is comprised of the certified administrative record in this case.) [hereinafter cited as Appendix]. This section was amended to read:
(4) Where an immigration officer considers the questions set out in paragraphs (3)(a) and (c), he shall take into consideration the opinion of an officer of the office of the National Emрloyment Service serving the area in which the person seeking an employment authorization wishes to engage in employment.
112 Can.Gaz., Part II, No. 5, § 20(4).
. The Board is given authority under both RRA and RUIA to determine which employers and employees are covered.
See
. The General Counsel stated the reasoning supporting this conclusion as follows:
Thus, it appears that under provisions of the Immigration Act, a United States railroad operating in Canada is required to hire Canadians for any maintenance of way, repair or switching work, as train crew for any non-international operation, as clerical staff, and for most sales and managerial positions, unless the railroad is able to demonstrate that (1) no qualified Canadian citizen or permanent resident was available for the employment involved, and (2) the railroad had made "reasonable efforts” to hire or train Canadian citizens or permanent residents for the еmployment involved.
Appendix at 8.
. On April 26, 1983, the Board amended its decision to apply retroactively to the period between April 9, 1978, and December 31, 1982, unless the employer notified the Board within 60 days that the employer would make no attempt to recover taxes paid during that period. Appendix at 10. On June 29, 1983, the Board again amended its decision to provide that service between April 9, 1978, and December 31, 1982 would be considered covered service unless the individual worker filed for a tax refund for all or part of the period. Any period for which a tax refund is requested will not be a period of covered service. See Appendix at 29.
. The RLEA also challenges the appropriateness of the Board’s inclusion of Canadian union representatives within its decision claiming that the Canadian regulations relate only to the employment situation.
See
Brief for RLEA at 11. The Board does not address this issue in its brief. The Deputy General Counsel did address this challenge in his denial of the RLEA's request for reconsideration. He conceded that it is doubtful that the Canadian regulations apply to elected union officials, however, he goes on to assert that the exceptions to covered service nonetheless apply. Although somewhat obscure, the Deputy General Counsel’s rationale for this assertion appears to be that the union is subject to the restrictions of the Canadian regulations in its hiring of personnel in Canada
{e.g.,
support staff), thus the union, as an employer, is
required in part
to hire Canadians and consequently the exceptions to covered service apply to
all
employees, including union representatives even though they are not specifically covered by the Canadian regulations.
See
Appendix at 33-34. We decline to resolve this issue on the basis of briefing which consisted of only three sentences in the RLEA’s brief and no discussion of the relevant statutory text, legislative history, or relevant case law.
See Carducci v. Regan,
.
See Kalmich v. Bruno,
. The RLEA cites two cases construing the term "require.”
United States v. Henricks,
. Section 351(e) was added to the RUIA in 1939. Pub.L. No. 76-141, § 1, 53 Stat. 845 (1939). There is a one paragraph explanation of the addition of § 351(e) in H.R.Rep. No. 686, 76th Cong., 1st Sess. 3 (1939). The provision was added to exclude 400 Mexican employees of the Pullman Company employed exclusively in Mexico because "the service is completely divorced from American soil and it would be extremely difficult to make satisfactory arrangements for administering the Unemployment Insurance Act in such places.”
With reference to the Railroad Retirement and Carriers Taxing Acts [similarly amended by H.R.J.Res. 496], the situation is perhaps even more difficult. The Carriers Taxing Act provides that every employer, as defined therein ... withhold from the pay of each employee a certain income tax. The Republic of Mexico, on the other hand, prоhibits any such deductions.
Administration of the Railroad Retirement Act in Mexico would be substantially as difficult as administration of the Railroad Unemployment Insurance Act, and it seems inadvisable to attempt it apart from any consideration having to do with the Carriers Taxing Act.
Id. at 1-2.
The major reasons for enacting these exclusionary provisions appear to be difficulties in administering the Acts in a foreign country and the fact that Mexico prohibited any withholding tax, the means by which these programs are partly funded. See infra note 12. At the time these provisions were passed, Mexican Law providеd:
In any enterprise, regardless of its nature, the employer may not employ less than 90 percent Mexican workers in each of the skilled and unskilled classes, unless, in the case of skilled workers, the proper board of conciliation and arbitration authorizes a temporary reduction of this percentage.
The preceding prohibition is applicable only when the total number of workers exceeds 5; when it does not, the percentage of Mexican workmen shall be 80.
The requirement in this article does not apply to managers, directors, administrators, superintendents, and general heads of enterprises.
Appendix at 33.
. We would also expect the Board's decision to be supported by findings in the record with respect to the meaning and effect of the Canadian regulations, unless the Board were able to predicate its decision solely on the finding that the express language of the Canadian regulations mandated the hiring of Canadians. See infra p. 863.
. In denying the RLEA’s request for reconsideration, the Deputy General Counsel does provide some elucidation of the "in whole or in part” language of the statutory provisions. The Deputy Counsel states:
This language appears to be subject to a number of interpretations. First, it may be said that if the laws applicable to the place of service make it mandatory that locals be hired for some types of jobs but place no restrictions on employment for other types of jobs, then the service in question is not covered since the law "in part” requires the hiring of locals. On the other hand, the law of the place of service may require that all employees of an enterprise be locals ("in whole”) or that a percentage be locals (“in part”).
Finally, it would appear that service is not covered even if the law of the place of service does not make it mandatory that locals be hired (requires "in whole”) but merely gives locals a preference in employment (requires "in part"), which preference is of sufficient strength, as herei to require that most persons hired be citizens or residents.
Appendix at 32-33.
The Deputy General Counsel, while enumerating these varying interpretations, fails to indicate explicitly which interpretation is being adopted. The second paragraph would seem to imрly that a preference for hiring local citizens or residents may in effect be sufficient to be construed as a requirement in part.
. The Deputy General Counsel discounted Mr. Wright’s letter as based on an "extremely literal” interpretation of the requirement language in the RRA and RUIA coverage exceptions. See supra p. 862. The Deputy General Counsel, however, places utter confidence in Conrail’s assertions that Canadian citizens must be hired to fill most positions. See Appendix at 37. The Board argues that Conrail’s factual assertions were never challenged during the administrative proceedings. See Brief for Board at 19. However, as the RLEA points out, until the issuance of the denial of its request for reconsideration, relying on the Conrail data, the RLEA had no reason to believe that the Deputy General Counsel intended to rely on the factual assertions made by Conrail in its request for a private letter submitted to a separate agency— the Internal Revenue Service. See Reply Brief for RLEA at 3-4.
The General Counsel apparently issued Legal Opinion L-83-79 solely on the basis of the fact that the Internal Revenue Service had ruled in a private letter ruling to Conrail that Canadian law .required the employment of Canadians within the meaning of § 3231(d) of the Railroad Retirement Tax Act (RRTA),
. Canada submitted an
amicus curiae
brief presenting its position on Canadian law along with data suggesting that the new regulations issued in 1978 resulted in no change in hiring patterns. The Board argues that while the pre-1978 Canadian regulations did not require the hiring of Canadians, the 1978 regulations “greatly circumscribed the immigration officer’s ability to issue an employment authorization and place affirmative dues on an employer to hire and train," thus, creating a requirement.
See
Brief for Board at 17-18. Canada also notes that other regulations exempt a number of specific types of railway employees from the necessity of obtaining work authorizations.
See Ami-cus Curiae
Brief for Canada at 13-15. Finally, Canada points out that from November 22, 1979, until June 15, 1981, a waiver provision was in effect which exempted all U.S. railway workers from the work authorization provisions of § 20.
Id.
at 11-12. The Board asserts that the issues and evidence presented by Canada is untimely since this material was not presented to the Board during the administrative proceed