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SIEMINSKI v. DONOVAN
July 24, 1984
BOGDAN SIEMINSKI, PLAINTIFF,
RAYMOND J. DONOVAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Bogdan Sieminski ("Sieminski") has filed a complaint seeking
review of a refusal by the United States Department of Labor
("Department") to certify his employer's request that Sieminski
be permitted to hold a permanent position as a precision machine
tool operator despite Sieminski's status as an alien. Secretary
of Labor Raymond J. Donovan ("Secretary") and Department's
Employment and Training Administration submitted their
administrative record of the case and moved May 14, 1984
to dismiss pursuant to Fed.R.Civ.P. ("Rule") 12*fn1 or alternatively
for summary judgment pursuant to Rule 56.
When Sieminski did not respond to defendants' motion and
accompanying memorandum within the time permitted by this
District Court's General Rule 13, this Court granted the motion
to dismiss on its merits (but without prejudice) as permitted by
General Rule 13(b). Sieminski then obtained a stay of the order
of dismissal to allow him to file a belated opposing memorandum
and a Rule 56 cross-motion for summary judgment.
In light of Sieminski's motion this Court engages in more
extended analysis, but the end result of dismissal is the same —
this time however with prejudice. Defendants' Rule 56 motion is
Sieminski's employer Capitol Manufacturing Company ("Capitol")
sought certification of Sieminski as a permanent employee under
Immigration and Nationality Act § 212(a)(14),
8 U.S.C. § 1182(a)(14) ("Section 212(a)(14)"), which provides in pertinent
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 the Attorney
General that (A) there are not sufficient workers 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 where the alien is
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. . . .
Administrative Law Judge ("ALJ") Freeman Murray remanded an
initial Notice of Findings by Department's Certifying Officer
Wellington Howard against Sieminski and Capitol, but the second
time around the Certifying Officer once again proposed to deny
certification. Sieminski could not obtain review before an ALJ of
the Certifying Officer's second Notice of Findings because
Capitol refused to join in an administrative appeal as it had the
first time. Both alien and employer must request administrative
review under 20 C.F.R. § 656.26(a) (citations to portions of
Section 656 will take the form "Reg. § 656 —"):
If a labor certification is denied, a request for an
administrative-judicial review of the denial may be
(2) By the alien, but only if the employer also
requests such a review.
Thus the Certifying Officer's second Notice of Findings
automatically became ...
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