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Secretary of Labor of United States v. Farino

decided: December 19, 1973.

SECRETARY OF LABOR OF THE UNITED STATES ET AL., DEFENDANTS-APPELLANTS
v.
PHIL FARINO AND HOE KOW CANTONESE RESTAURANT, PLAINTIFFS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 71 C 2495 THOMAS R. McMILLEN, Judge.

Swygert, Chief Judge, Cummings and Stevens, Circuit Judges.

Author: Cummings

CUMMINGS, Circuit Judge.

In this action, plaintiff Phil Farino, the owner of an automobile service station in Chicago, sought an Alien Employment Certification so that he could continue to employ an Israeli alien, Reuben Zippershtein, as a foreign auto mechanic. The other plaintiff, Hoe Kow Cantonese Restaurant, also located in Chicago, sought an Alien Employment Certification for Chinese alien Tin Sang Lo so that he could remain in its employ as a Cantonese cook.*fn1 Both Alien Employment Certifications had been denied by the Department of Labor's Manpower Administration.

Before aliens such as those plaintiffs seek to employ can qualify for sixth preference visas for permanent residence in the United States under 8 U.S.C. § 1153(a)(6),*fn2 the Secretary of Labor must certify that the aliens' entry into the domestic labor market will not adversely affect American labor. Thus 8 U.S.C. § 1182(a)(14) provides:

"(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible 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 employed. The exclusion of aliens under this paragraph shall apply to special immigrants defined in section 1101(a)(27)(A) of this title (other than the parents, spouses, or children of United States citizens or of aliens lawfully admitted to the United States for permanent residence), to preference immigrant aliens described in sections 1153(a)(3) and 1153(a)(6) of this title, and to nonpreference immigrant aliens described in section 1153(a)(8) of this title * * *."

The Government argues that Congress has committed such labor certification determinations to the discretion of the Secretary of Labor so that judicial review is prohibited under Section 10 of the Administrative Procedure Act (5 U.S.C. § 701(a)). It argues further that if the determination is reviewable, plaintiffs lack standing to seek review.

In an unreported decision and order, the district court held that a refusal to certify is non-discretionary and thus subject to review under the Administrative Procedure Act.*fn3 It also held that plaintiffs were adversely affected or aggrieved by the defendants' decision and therefore had standing to sue. The court concluded that the denials of the certifications were unsupported by facts and therefore must be set aside as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" under Section 10(e)(2)(A) of the Administrative Procedure Act (5 U.S.C. § 706(2)(A)). Pursuant to its authority to "compel agency action unlawfully withheld" (5 U.S.C. § 706(1)), the court ordered defendants to issue the requested alien certifications. We affirm in part and reverse in part.

Reviewability and Standing

The Government's principal contention is that the Secretary of Labor's power under 8 U.S.C. § 1182(a)(14), supra, is discretionary and therefore not subject to judicial review under the Administrative Procedure Act. Section 10 of that Act provides in relevant part:

"This chapter applies, according to the provisions thereof, except to the extent that -- (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." (5 U.S.C. § 701(a)).

The applicable portion of the Immigration and Nationality Act, namely Section 1182(a)(14), does not mention the word "discretion" nor does it deal with reviewability of the Secretary's certification denials thereunder. The failure of the Immigration and Nationality Act to provide for judicial review of the Secretary's action does not bar review under the Administrative Procedure Act. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 157, 25 L. Ed. 2d 184, 90 S. Ct. 827; Kingsbrook Jewish Center v. Richardson, 486 F.2d 663 (2d Cir. 1973), 42 L.W. 2254, 2255. While the legislative history of Section 1182(a)(14) shows that Congress was interested in protecting American labor against an alien influx where the local economy could not absorb it, it does not show that Congress committed this agency action "to agency discretion" (5 U.S.C. § 701(a)), thereby cutting off judicial review.*fn4 A part of the House Report is entitled "Discretionary authority," but it deals with other Sections of the statute and does not discuss Section 1182(a)(14).*fn5

Applying Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814, we hold that the Secretary's action is subject to judicial review. There a unanimous Court held that the Secretary of Transportation's approval of the bifurcation of a Memphis public park by a six-lane interstate highway was reviewable under the Administrative Procedure Act. Here, as in that case, "there is no indication that Congress sought to prohibit judicial review and there is most certainly no 'showing of "clear ...


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