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June 18, 1984


The opinion of the court was delivered by: Aspen, District Judge:


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 granted.

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 ...

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