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.
Precedent: Pre-BALCA Decisions
Procedure: Pre-BALCA decisions are not binding. MMMATS, INC., 1987-INA-540 (Nov. 24, 1987) (en banc)
Stare decisis: Board declines to overturn established Board ruling in the absence of a compelling justification: case had been on the books for over 10 years and neither Congress nor DOL had made any effort by law or regulation to alter the decision. [Editor's note: see also Marvin and Ilene Gleicher, 1993-INA-3 (Oct. 29, 1993) (en banc) (Board declined to overrule holding relating to Schedule B waivers in part because the decision had been on the books for four years and there had been no change in the applicable regulations). CRAWFORD & SONS, 2001-INA-121 (Jan, 9, 2004) (en banc)
Request for BALCA review, failure to state grounds
Procedure: failure to state grounds for appeal: Where an employer failed to set out any grounds for the request for review, the appeal will be dismissed. NORTH AMERICAN PRINTING INK CO., 1988-INA-42 (Mar. 31, 1988) (en banc)
Procedure: failure to state grounds for appeal: Employer's mere assertions in its request for review that "the Employer has substantiated the necessity of the requirements set forth to fill the position in question and has met all the requirements established by the Department of Labor for Alien Labor Certification," does not constitute "particular grounds," pursuant to § 656.26. BROOKS ROOFING CO., INC., 1988-INA-116 (May 19, 1989) (en banc)
Request for Board review: failure to state grounds for review: " The timely filing of the brief cures any error arising from the failure to state grounds for the appeal in [an employer's] request for review." MALONE & ASSOCIATES, 1990-INA-360 (July 16, 1991) (en banc)
Request for Board review: failure to specify grounds: "The request for review in the instant case merely states that "[t]he grounds, arguments and considerations advanced in the August 18th rebuttal are hereby adopted and incorporated by reference." Such statements are tantamount to a failure to set forth specific grounds for review." MIRIAM R. WITLIN, 1994-INA-23 and 52 (Apr. 7, 1994) (en banc)
Request for Board review: failure to specify grounds: where the request for review merely stated that "[t]he grounds, arguments and considerations advanced in the August 18th Rebuttal are hereby adopted and incorporated by reference" the Board found that such was tantamount to a failure to set forth specific grounds for review as required by regulation at 20 C.F.R. § 656.26(b)(1). "[A] general incorporation by reference of a document issued prior to the final determination is not sufficient to set forth specific grounds for review of the final determination itself. 20 C.F.R. Part 656.26(b)(1)." MIRIAM R. WITLIN, 1994-INA-23 and 52 (Nov. 29, 1994) (recon en banc)
Request for BALCA review, timeliness
Request for BALCA review: OALJ rule of practice at 29 CFR § 18.4(c)(3) does not apply to add five mailing days because the applicable regulation at 20 CFR § 656.21(b)(1) provides a rule of special application that sets the time for appealing at " within 35 calendar days of the date of the determination, that is, by the date specified on the Final Determination form," see 29 CFR § 18.1(a) (rule of special application controls). DELMAR FAMILY DENTAL CENTER, 1988-INA-132 (Sept. 26, 1988) (en banc)
Request for BALCA review, standing of the alien
Request for en banc review: en banc review will not be granted when it is only the alien who is requesting review: "[A]n appeal cannot be maintained when Employer has not joined in the petition." HUB TRUCK RENTAL, 1991-INA-262 (Jan. 6, 1992) (en banc)
Request for BALCA review, request for extension of time
Request for Board review: standard for request for extension of time: good cause (previously, the Board used an extraordinary circumstances standard). MALONE & ASSOCIATES, 1990-INA-360 (July 16, 1991) (en banc)
Request for BALCA review, motion for reconsideration is not a request for Board review
Procedure: motion for reconsideration is not a request for BALCA review: the CO was forwarding all cases with motions for reconsideration to BALCA on the theory that only BALCA could review a Final Determination: the Board rejected this theory noting that the Board had held that COs may reconsider their Final Determinations and that under the facts of the instant cases it was clear that neither employer actually was seeking Board review. SEQUEL CONCEPTS, INC., 1992-INA-421 (Oct. 29, 1993) (en banc)
En Banc Procedure
Procedure: Order Granting Motion for Extension of Time in en banc proceeding issued where at least 4 members voted in favor of granting. WARMTEX ENTERPRISES, 1988-INA-403 (Aug. 17, 1989) (en banc)
Procedure: denial of petition for en banc review. WAILUA ASSOCIATES, 1988-INA-533 (Aug. 25, 1989) (en banc)
Procedure: failure to submit statement of intent to proceed: where the employer failed to response to the Board's notice of en banc review requiring a statement of intent to proceed the en banc proceeding was dismissed. MANZUR KHALID, M.D., 1991-INA-7 (Apr. 9, 1992) (en banc)
Procedure: failure to submit statement of intent to proceed: in one case consolidated for en banc review, one employer failed to response to the Board's notice of en banc review requiring a statement of intent to proceed: accordingly, this case was dismissed from the en banc proceeding. VITO VOLPE LANDSCAPING, 1991-INA-300, 1991-INA-349 (Oct. 28, 1993) (en banc)
Procedure: voting: where the Board was equally divided as to the resolution of the matter, the CO's denial of labor certification was affirmed: Board had six members at the time. WALTER LANDOR ASSOCIATES, 1988-ina-111 (May 31, 1989) (en banc)
