The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff Wladyslaw Gladysz ("Gladysz") sued Raymond J.
Donovan ("the Secretary") and the United States Department of
Labor, Employment and Training Administration seeking
declaratory and injunctive relief from denial of labor
certification pursuant to 8 U.S.C. § 1182(a)(14).*fn1
Presently before the Court are the parties' cross-motions for
summary judgment. In the alternative, the Secretary has filed a
motion to dismiss. For reasons set forth below, Gladysz's
motion for summary judgment is denied. The Secretary's motion
to dismiss is denied, but his motion for summary judgment is
Summary judgment is appropriate where there are no genuine
issues of material fact relevant to judgment in movant's
favor. Cedillo v. International Association of Bridge &
Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th
Cir. 1979). The nonmovant is entitled to the benefit of any
reasonable inferences which may be made from facts in the
materials submitted, United States v. Diebold, Inc.,
369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Factual
disputes, moreover, do not preclude summary judgment unless
they are outcome determinative. Egger v. Phillips,
710 F.2d 292, 296 (7th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct.
284, 78 L.Ed.2d 262 (1983). It is with these standards in mind
that we consider the parties' motions.
Noon Hour Food Products ("the employer") filed an
application for alien labor certification pursuant to
8 U.S.C. § 1182(a)(14) on behalf of Gladysz. The employer sought
certification for a machine rebuilder. The Department of Laobr
issued a Notice of Findings proposing to deny certification,
based upon the employer's failure to post a notice of the job
opportunity which directed prospective job applicants to the
employer itself, as required by
20 C.F.R. § 656.21(b)(3)(i)*fn2. The Department of Labor added that the
employer failed to clearly document its reasons for rejecting
the applications of United States workers.
In response, the employer submitted documents attempting to
rebut the Notice of Findings. These included a revised job
notice, and applications of prospective employees who appeared
at the employer's premises. The Department of Labor issued a
second Notice of Findings which proposed to deny certification
because copies of applicants' resumes submitted by the
employer were not legible, and because two of the applicants
rejected by the employer were in fact qualified for the
position. The Department of Labor subsequently denied labor
certification in a Final Action Notice, declaring that the
employer failed both to respond meaningfully to the second
Notice of Findings, and to submit clear and sufficient
documentation that the United States workers who had applied
for the job were rejected solely for job-related reasons.
The employer did not seek review of the Final Action Notice.
According to regulations promulgated by the Secretary of
Labor, review of the denial of labor certification may be
sought by the employer or by the alien if the employer
requests such review as well. 20 C.F.R. § 656.26(a).*fn3 The
Secretary therefore argues that Gladysz lacks standing to
challenge denial of the labor certification. He adds that the
case is moot, since no jobs for which Gladysz might be
certified exists. Denial of certification, according to the
Secretary, was neither arbitrary nor capricious.
Gladysz asserts that he has standing to seek judicial review
of the labor certification denial, and that this matter is not
moot. He claims the labor certification denial was arbitrary
and capricious, and adds that the regulations which refuse
administrative review of labor certification to aliens violate
the due process clause of the Fifth Amendment and deny him
equal protection of the laws.
Based upon the aforecited regulations, 20 C.F.R. § 656.26(a),
the Secretary argues that the case must be dismissed or,
alternatively, summary judgment be granted because Gladysz
lacks standing to challenge the denial of the labor
certification. The parties agree that the two-pronged test of
standing, first set forth in Association of Data Processing
Service Organization v. Camp, 397 U.S. 150, 152-153, 90 S.Ct.
827, 829-830, 25 L.Ed.2d 184 (1970), controls this Court's
analysis. See also Stenographic Machines v. Regional
Administrator, 577 F.2d 521, 528 (7th Cir. 1978); Marshall v.
Heimann, 652 F.2d 685, 691 (7th Cir. 1981), cert. denied,
455 U.S. 981, 102 S.Ct. 1489, 71 L.Ed.2d 691 (1982) (both cases
applying the two-pronged test). Data Processing requires first
that the challenged agency action cause an "injury in fact,
economic or otherwise." 397 U.S. at 152, 90 S.Ct. at 829.
Secondly, the interest the plaintiff seeks to protect must fall
"arguably within the zone of interests to be protected or
regulated by the statute . . . in question." Id. at 153, 90
S.Ct. at 830.
The Secretary does not contend that Gladysz fails to meet
the first part of the test. Clearly, the denial of a labor
certification worked an "injury in fact, economic or
otherwise" on Gladysz. However, the Secretary contends that
the plaintiff does not meet the second, or "zone of
interests," test. He claims that Congress designed §
1182(a)(14) to protect American workers from foreign
competition while still allowing American employees to hire
qualified employees. See Production Tool v. Employment and
Training Admin., 688 F.2d 1161, 1168 (7th Cir. 1982); Pesikoff
v. Sec'y of Labor, 501 F.2d 757, 761-762 (D.C. Cir. 1974)
(discussing legislative history), cert. denied, 419 U.S. 1038,
95 S.Ct. 525, 42 L.Ed.2d 315 (1974). The Secretary concludes
that since the legislative history of § 1182(a)(14) focusses on
the welfare of American workers and employers, aliens fall
outside the "zone of interests" of the
statute. We believe the Secretary's analysis is contrary to
the law of this Circuit, and that it reads the "zone of
interests" test too narrowly.
The Seventh Circuit has applied the "zone of interests" test
and rejected the Secretary's identical argument, squarely
holding that an alien has standing under § 10 of the
Administrative Procedure Act ("APA"), 5 U.S.C. § 702, to obtain
judicial review of a denial of a labor certification under §
1182(a)(14). Stenographic Machines, Inc. v. Regional
Administrator, 577 F.2d 521, 528 (7th Cir. 1978). Other courts
have also held that aliens arguably fall within the zone of
interests regulated by § 1182(a)(14). See Reddy v. U.S. Dept.
of Labor, 492 F.2d 538, 543-544 (5th Cir. 1974); Mukadam v.
U.S. Dept. of Labor, 458 F. Supp. 164, 167 (S.D.N.Y. 1978). The
Secretary cites no contrary authority to support his standing
argument, and our search has uncovered none. As the Secretary
concedes, Stenographic Machines reads the "zone of interests"
test expansively, and, indeed, the plain language of the test
is broad, requiring only that the interest fall "arguably
within the zone of interests . . . regulated by the statute."
Data Processing, 397 U.S. at 153, 90 S.Ct. at 830 (emphasis
added). Gladysz's interest in the machinist job does come
within the "zone" of § 1182(a)(14), which explicitly
"regulates" his chances to obtain that job.
Although Stenographic Machines seems to dispose of the
standing issue, the Secretary tries to distinguish the case,
contending that it was decided before the effective date of the
regulation which denies "administrative-judicial review" to
aliens unless "the employer also requests such a review."
20 C.F.R. § 656.26(a)(2). At the outset we observe that, contrary
to the Secretary's assertion, this regulation was promulgated
before Stenographic Machines was decided. See 42 Fed.Reg. 3448
(January 18, 1977).*fn4 However, the Seventh Circuit did not
address the potential conflict between its holding and the
regulation.*fn5 For the following reasons, we hold that
Stenographic Machines still controls this case, and that
Gladysz has standing under the APA, 5 U.S.C. § 702, to seek
review of the adverse labor certification decision.
The Secretary contends that he had the power to override the
statutory command of the APA (as construed in Stenographic
Machines) that an alien has standing to challenge a labor
certification denial. It is true that Congress has granted the
Secretary plenary power to formulate the administrative
procedures under which he will decide labor certification
petitions. See Production Tool, supra, 688 F.2d at 1166-1167.
But even if he has the power to deny or restrict an alien's
right to "administrative" review, the Secretary has gone one
step further and tried to deny "administrative-judicial review"
to an alien seeking review. 20 C.F.R. § 656.26(a) (1980)
(emphasis added). The Department of Labor cannot unilaterally
override the review provisions of the APA, a Congressional Act;
only Congress can do so. It is elementary that "[t]he
rulemaking power granted to an administrative agency charged
with the administration of a federal statute is not the power
to make law. Rather, `it is the power to adopt regulations to
carry into effect the will of Congress as expressed by the
statute.'" Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-214,
96 S.Ct. 1375, 1391, 47 L.Ed.2d 668 (1976), quoting Dixon v.
United States, 381 U.S. 68, 74, 85 S.Ct. 1301, 1305, 14 L.Ed.2d
223 (1965). The relevant statute in this case,
8 U.S.C. § 1182(a)(14), does not speak directly to judicial review, but
neither does it foreclose review under the APA or expressly
authorize the Secretary to do so. In light of Stenographic
Machines' holding that review is otherwise
available under the APA, we must ask how Congress in the APA
provided for judicial review to be precluded.
Access to judicial review under the APA can be denied where
"statutes preclude judicial review," 5 U.S.C. § 701(a)(1)
(emphasis added), or where "agency action is committed to
agency discretion by law." 5 U.S.C. § 701(a)(2) (emphasis
added). These "generous review provisions [of the APA] must be
given a hospitable interpretation," and that "only upon a
showing of clear and convincing evidence of a contrary
legislative intent should the courts restrict access to
judicial review." Abbott Laboratories v. Gardner, 387 U.S. 136,
141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967) (emphasis
added). As noted above, § 1182(a)(14) shows no evidence, let
alone "clear and convincing evidence," of a legislative
intent to foreclose an alien's right to judicial review under
the APA of a labor certification denial. See Reddy, Inc. v.
U.S. Dept. of Labor, 492 F.2d 538, 543-544 (holding that the
APA grants a right to judicial review to an alien denied labor
certification, and that § 1182(a)(14) does not foreclose APA
review); Sec'y of Labor of United States v. Farino,
490 F.2d 885, 888 (7th Cir. 1973) (§ 1182(a)(14) does not preclude APA
review or commit labor cert. denials to agency discretion).
Given the absence of legislative intent to foreclose judicial
review, the Secretary cannot unilaterally "make law," Ernst &
Ernst v. Hochfelder, supra, and prevent judicial review of his
own decisions. Thus, 20 C.F.R. § 656.26(a) does ...