In Heckler v. Chaney, supra, the Supreme Court held that "an agency's decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2)." 470 U.S. at 832. At the core of this presumption is the usual unavailability of judicially manageable standards to evaluate an agency's decision to prosecute or to enforce its own regulations. Id. at 830-32. This presumption against judicial review of agency decisions to enforce its regulations can only be rebutted where the substantive statute or its implementing regulations provide "guidelines for the agency to follow in exercising its enforcement power." Id. at 832-33.
The presumption against judicial review of the Special Administrator's decision not to impose sanctions is not rebutted. Neither the Immigration and Nationality Act nor its implementing regulations provide the DOL with any guidelines to consider in deciding whether to sanction an employer's violation of the terms of its labor certification. Accordingly, the Court must also deny plaintiffs' request for a remedial order pursuant to the regulations governing the labor certification process for the temporary employment of aliens in the United States. This is because there is no judicially manageable standard by which the Court can evaluate the DOL's decision not to sanction the Virginia growers who violated the terms of their labor certification in 1986.
For the reasons already enumerated herein, the application for the issuance of an Order to Show Cause will not be issued, but this does not mean in any way that the Department of Labor has clean hands, in a practical sense. The Department of Labor has been the subject of a multitude of proceedings in this Court going back to NAACP, Western Region v. Hodgson, 57 F.R.D. 81 (D.D.C. 1972), NAACP, Western Region v. Brennan, 360 F. Supp. 1006 (D.D.C. 1973), and its progeny, wherein the bureaucracy has resisted and resisted, to put it mildly, herculean efforts to get it to enforce laws under its jurisdiction pertaining to medical care, sanitary working conditions, and housing for our nation's migratory farm workers who have no real world sponsors of their plight and go unnoticed except for an occasional news story, and even these are few and far between.
The Department of Labor has also been dragged into this Court on numerous occasions because of its noncompliance with Orders of this Court dealing with the employers of migrants in terms of their entitlement to back pay for at least two years (1983 and 1985) as more fully described in another Opinion which this Court also issued today. See Frederick County Fruit Growers Ass'n, Inc. v. William E. Brock, et al., 703 F. Supp. 1021 (D.D.C. 1989).
The Court will issue an Order of even date herewith memorializing these findings.
ORDER - January 17, 1989, Filed
In accordance with the Court's Opinion of even date herewith, it is, by the Court, this 14th day of January, 1989,
ORDERED that the plaintiffs' motion requesting the Court's issuance of an Order directing the Department of Labor to Show Cause why it should not be held in civil contempt shall be, and hereby is, denied; and it is
FURTHER ORDERED that the plaintiffs' motion for the Court's issuance of a remedial order shall be, and hereby is, denied.