United States District Court, Northern District of Illinois, E.D
June 28, 1973
FIRST GIRL, INC., PLAINTIFF,
REGIONAL MANPOWER ADMINISTRATOR OF THE UNITED STATES DEPARTMENT OF LABOR, DEFENDANT.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on cross motions for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
This is an action seeking a declaratory judgment pursuant to
28 U.S.C. § 2201 and review pursuant to the Administrative
Procedure Act, 5 U.S.C. § 704, of defendant's denial of
employment certification to certain alien stenographers who
sought entry to the United States. Plaintiff, an Illinois
corporation engaged in placing secretaries in various business
offices on a temporary basis, proposes to
bring the aforesaid aliens to the United States as its
full-time employees and to use them in fulfilling its
"numerous contract commitments" for temporary workers.
In March of 1971 plaintiff applied for employment
certification for and on behalf of three British
stenographers: Carol Ann Ford, Christine Julie Austin, and
Hazel Gillian Powell. Both the applications and the subsequent
request for reconsideration thereof were denied by the
Regional Manpower Administrator on the grounds (1) that there
was no shortage of applicants for secretarial employment whose
skills met plaintiff's requirements and (2) that plaintiff did
not provide for its employees fringe benefits comparable to
those enjoyed by most secretaries in this employment area.
The statutory basis for the denials is
8 U.S.C. § 1182(a)(14), which provides:
"(a) Except as otherwise provided in this
chapter, the following classes of aliens shall be
ineligibile to receive visas and shall be
excluded from admission into the United States:
(14) Aliens seeking to enter the United States,
for the purpose of performing skilled or
unskilled labor, unless the Secretary of Labor
has determined and certified to the Secretary
of State and to the Attorney General that (A)
there are not sufficient workers in the United
States who are able, willing, qualified, and
available at the time of application for a visa
and admission to the United States and at the
place to which the alien is destined to perform
such skilled or unskilled labor, and (B) the
employment of such aliens will not adversely
affect the wages and working conditions of the
workers in the United States similarly
The Secretary of Labor has delegated the responsibility for
such determinations to the Manpower Administration, Department
Notwithstanding defendant's contention that the
discretionary nature of the denials removes them from the
purview of the Administrative Procedure Act, this Court has
jurisdiction over the action. Song Jook Suh v. Rosenberg,
437 F.2d 1098 (9th Cir. 1971); Golabek v. Regional Manpower
Administration, 329 F. Supp. 892 (E.D.Pa. 1971). However,
defendant is correct in his assertion that the question for
determination is whether defendant abused his discretion.
Golabek v. Regional Manpower Administration, supra. The test to
be applied in determining abuse of discretion is whether an
examination of the administrative record reveals no evidence
supporting defendant's decision. Song Jook Suh v. Rosenberg,
supra; Bitang v. Regional Manpower Administrator, 351 F. Supp. 1342
The administrative record indicates that the bases for the
reviewing officer's decision were "availability data"
submitted by the Illinois State Employment Service
(hereinafter referred to as "ISES"), stating that there were
45 applicants currently registered with ISES whose skills met
plaintiff's standards, and a United States Department of Labor
Area Wage Survey for the Chicago Metropolitan Area
(hereinafter referred to as "Wage Survey"). However, the
record establishes only that a certain number of people who
claimed to possess the requisite qualifications had registered
with ISES. There was no showing that the persons listed were
in fact qualified, were still available for employment, or
were willing to work for an employer such as plaintiff — as
specified in the provisions of 8 U.S.C. § 1182(a)(14).
Plaintiff has submitted the uncontroverted affidavit of
plaintiff's personnel director, establishing that from at
least 1968 plaintiff has made continual but unsuccessful
efforts to secure needed personnel, among them advertising in
Chicago newspapers and telephone directories, direct mail
advertising, and regular listing with ISES and the Job Bank.
Moreover, the affidavit asserts that in
response to plaintiff's standing order with ISES and Job Bank
only two applicants were referred to plaintiff, both of whom
failed plaintiff's qualifying skills test and one of whom
mentioned that she had come for an interview only to prevent
forfeiture of her unemployment benefits.
The Court finds no evidence to support defendant's
determination that there was no shortage of applicants
qualified, available, and willing to work in the type of
employment offered by plaintiff.
With respect to defendant's determination that plaintiff's
failure to provide appropriate fringe benefits would adversely
affect the working conditions of workers in the United States
similarly employed, the Court notes that plaintiff does not
fall within the class of ordinary employers of secretaries.
The unique nature of employment with plaintiff — including
temporary work assignments, variety of offices assigned, and
varying weekly work hours — must preclude comparison of its
fringe benefits with those of more conventional employers.
Recognizing this fact, the court in Golabek v. Regional
Manpower Administration, supra, refused to compare salaries of
parochial school teachers with those of public school teachers.
Defendant's analysis of prevailing fringe benefits was
predicated solely upon the aforementioned Wage Survey, which
provides information applicable to all office workers in the
City of Chicago. The Court finds that this information is
insufficient to support a finding that employment with
plaintiff would not "include fringe benefits that prevail for
U.S. workers similarly employed in the area of employment,"
the standard set forth in 29 C.F.R. § 60.6(b), for it is clear
that other office workers in Chicago are not "similarly
employed". Thus, the Court concludes that, since there is no
evidence in the record supporting defendant's determination,
the reviewing officer abused his authority in denying
plaintiff's application for certification of the aliens which
plaintiff intended to employ.
Accordingly, it is hereby ordered that plaintiff's motion
for summary judgment is granted and that the action is
remanded to defendant for the making of further determinations
not inconsistent with this opinion.
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