United States District Court, Northern District of Illinois, E.D
December 1, 1972
BETTY HSU WANG, PLAINTIFF,
REGIONAL MANPOWER ADMINISTRATOR OF THE UNITED STATES DEPARTMENT OF LABOR, DEFENDANT.
The opinion of the court was delivered by: McLAREN, District Judge.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on motions of defendant for
leave to file the Administrative Record and to have this
matter remanded to the Secretary of Labor for further
determination by the reviewing officer and for inclusion in
the Administrative Record of greater documentation of the
basis for his decision, said activity to be completed no later
than 60 days after the entry of this order. The motions are
The complaint seeks declaratory judgment pursuant to
28 U.S.C. § 2201 and judicial review of the Regional Manpower
Administrator's action with respect to plaintiff's application
for an immigrant visa. Said review would be pursuant to
5 U.S.C. § 704 and 706.
Plaintiff, a citizen of China, made application for an
immigrant visa for permanent residence pursuant to
8 U.S.C. § 1153(a)(3). A condition precedent for such a visa is
certification by the Secretary of Labor that there are not
sufficient workers in the United States to perform the work
which the alien is destined to perform and that employment of
"such aliens will not adversely affect the wages and working
conditions of the workers in the United States similarly
employed." 8 U.S.C. § 1182(a)(14). The task of making such
determination has been delegated to the Regional Manpower
Administrators of the United States Department of Labor.
Plaintiff's visa application was denied on June 19, 1972
because defendant declined to issue the necessary
certification. Plaintiff requested on two occasions that
defendant reconsider its action, but both requests for
reconsideration were allegedly denied, whereupon plaintiff
brought this suit. Defendant now requests that the matter be
remanded to it on the grounds that (1) the Administrative
Record contains conflicting evidence regarding facts that were
the purported basis for denying certification and (2) the
reviewing officer's opinion indicates either an inadequate
review or failure to review.
The pendency of a review petition does not bar the reopening
of an administrative proceeding. See Anchor Line Limited v.
Federal Maritime Commission, 112 U.S.App.D.C. 40,
299 F.2d 124, 125, cert. denied, 370 U.S. 922, 82 S.Ct. 1563, 8 L.Ed.2d
503 (1962). Rather, when an agency wants to reconsider its
action, it should move to have the matter remanded or held in
abeyance. Anchor Line Limited, supra.
Plaintiff opposes remand for further determination of the
facts, and demands instead that the Court order defendant to
grant the employment certificate. Even assuming,
arguendo, that this Court has the power to order that the
certificate be issued — perhaps on motion for summary judgment
— such action would not be appropriate now.
This Court doubts, however, that it has power to order the
defendant to issue the certificate. In the instant case the
Court's function is to decide whether there has been an abuse
of discretion or an error of law. Golabek v. Regional Manpower
Administrator, U.S. Dept. of Labor, 329 F. Supp. 892 (E.D.Pa.,
The Secretary of Labor has been granted responsibility for
certification, 8 U.S.C. § 1182(a)(14), and the Court has found
no authority to support a de novo review before it. Instead, it
appears that when the administrative record does not support
the Secretary's action, the Court must remand the matter for
further administrative action.
Therefore, were this motion denied and were the plaintiff
eventually to prevail on a motion for summary judgment, the
matter would be remanded to the defendant. Consequently,
remanding the matter at this time should not prejudice the
On remand, it is suggested that defendant weigh Judge Tone's
opinion in Bitang et al. v. Regional Manpower Administrator of
the U.S. Dept. of Labor, 351 F. Supp. 1342 (1972), in which he
considers the standard governing defendant's discretion.
A separate order will be entered consistent with the
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