BALCA En Banc Decision Summaries

NOTICE : These BALCA en decision summaries were created solely to assist BALCA staff in researching BALCA caselaw. The summaries are not part of the opinions and in no way constitute the official opinion of BALCA, the Office of Administrative Law Judges or the Department of Labor on any subject. The summaries should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. They are intended simply as a research tool, and are not intended as final legal authority and should not be cited or relied upon as such.

General review authority

Scope of BALCA review: ". . .a reviewing body should not find implicit limits on its review authority based on indeterminate evidence of Congressional - or in this case - the regulatory drafter's - intent about the scope of the review authority authorized." ". . . the source of the Board's authority is the Part 656 regulations which vest a general review authority in BALCA to review denials of labor certification and do not include any express limits on the subjects the Board can consider . . . ." EL RIO GRANDE , 1998-INA-133 (July 28, 2000) (recon en banc)

Limitation to evidence and argument presented before the CO

Scope of BALCA review: evidence, policy: The regulation at 20 C.F.R. § 656.24(b)(4) which requires the development of evidence before certifying officers. "is an expression of the importance for labor certification matters to be timely developed before certifying officers who have the resources to best determine the facts surrounding the application." CATHAY CARPET MILLS, INC. , 1987-INA-161 (Dec. 7, 1988) (en banc)

Scope of BALCA review: the regulations preclude consideration of evidence which was not "within the record upon which the denial of labor certification was based." 20 C.F.R. §656.26(b)(4). FRIED RICE KING CHINESE RESTAURANT , 1987-INA-518 (Feb. 7, 1989) (en banc)

Scope of BALCA review: evidence first submitted in motion to remand cannot be considered by the Board. UNIVERSAL ENERGY SYSTEMS, INC. , 1988-INA-5 (Jan. 4, 1989) (en banc)

Scope of BALCA review: The Board's review of the denial of labor certification is based solely on the record upon which the denial was based, the request for review, and legal briefs. The Board does not consider additional evidence submitted in conjunction with a request for review. The University of Texas at San Antonio, 88-INA-71 (May 9, 1988). IMPORT S.H.K. ENTERPRISES, INC. , 1988-INA-52 (Feb. 21, 1989) (en banc)

Evidence submitted with a motion for reconsideration

Scope of BALCA review: where the CO's affirmance of the denial of certification was based on a consideration of the evidence submitted with the request for review, treated by the CO as a motion for reconsideration, such evidence was in the record upon which the denial was made and could be considered by the Board. CONSTRUCTION AND INVESTMENT CORP., dba EFFICIENT AIR , 1988-INA-55 (Apr. 24, 1989) (en banc)

Issues raised and preserved by the CO

Scope of BALCA review: "Unless, the CO raises an issue in the Notice of Findings and in the Final Determination, we will not consider the issue on appeal." DATAGATE, INC. , 1987-INA-582 (Feb. 17, 1989) (en banc)

Due process: BALCA will not review issues not preserved by the Final Determination or presented in the NOF. INTERNATIONAL STUDENT EXCHANGE OF IOWA, INC. , 1989-INA-261 (Apr. 21, 1992) (en banc)

Procedure: "An assertion made in the NOF, responded to in Rebuttal, and not repeated in the Final Determination, is deemed to be successfully rebutted and thus not an issue before us. 20 C.F.R. §656.25(g)(2)(ii) (1988)." BARBARA HARRIS , 1988-INA-392 (Apr. 5, 1989) (en banc)

[Editor's note: but see cases cited in "Due Process" section to the effect that BALCA can remand for consideration of issues not previously litigated below]

Deference to credibility findings of panel

Scope of BALCA review: where the original panel in the case reasonably chose to credit the statements of the two applicants over those of the Employer, the Board en banc declined to disturb that credibility finding. S & G DONUT CORP. and SIT DONUT CORP., d/b/a DUNKIN DONUTS , 1988-INA-90 and 91 (May 17, 1990) (en banc)

Lack of authority to rule on validity of the regulations

Scope of BALCA review: BALCA, as a non-Article III court, lacks inherent authority to rule on the validity of a regulation; moreover, we hold that it also lacks express authority to invalidate the regulations as written. See Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1117 (6th Cir.1984). DEARBORN PUBLIC SCHOOLS , 1991-INA-222 (Dec. 7, 1993) (en banc)

Review of SCA wage determinations

Scope of BALCA review: BALCA has jurisdiction to review SCA wage determinations made in the context of applications for alien labor certification under 20 C.F.R. Part 656. EL RIO GRANDE , 1998-INA-133 (Feb. 4, 2000) (en banc)