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United States District Court, Northern District of Illinois, E.D

July 24, 1984


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


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 granted.


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 part:

(a) General classes

  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

(1) By the employer; and

      (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 Secretary's final determination.


Defendants initially argue Section 212(a)(14) was intended to protect workers who are United States citizens, not workers who are aliens. Accordingly defendants contend Sieminski has no standing to seek review of Secretary's decision.

Defendants oversimplify matters by suggesting that only workers who are United States citizens are "protected" by Section 212(a)(14) in the standing sense. Our Court of Appeals pointed out two weaknesses with that analysis in Stenographic Machines, Inc. v. Regional Administrator for Employment and Training, 577 F.2d 521, 528 (7th Cir. 1978):

    1. Standing extends not only to those representing
  interests "protected" in the

  everyday sense of being advanced, but also to those
  representing interests "regulated" by the statutory
  scheme in question.

    2. Section 212(a)(14) obviously protects some
  aliens even in the everyday sense by permitting them
  into the country to perform permanent employment when
  other aliens are excluded.

Moreover Reg. § 656.26(a)'s requirement that both alien and employer join in requests for "administrative-judicial review" does not destroy Sieminski's standing. As Judge Aspen of this District Court demonstrated in Gladysz v. Donovan, No. 83 C 4957, slip op. at 4-8 (N.D.Ill. June 18, 1984), Secretary cannot divest federal courts of subject matter jurisdiction over cases otherwise reviewable simply by promulgating that regulation.*fn2 Thus Sieminski has standing to challenge Secretary's decision.*fn3

Review of Secretary's Decision

It has already been said Capitol failed to join with Sieminski in seeking administrative review of the Certifying Officer's second Notice of Findings. That alone suffices to uphold Secretary's refusal to certify Sieminski. Reg. § 656.26(a) outlines a procedure for administrative review of the proposed denial of a labor certification, and Sieminski and Capitol did not follow it. In fact Sieminski concedes (Mem. 3) such noncompliance, asserting Capitol did not join in a request for administrative review because it is "fed up with the expense and aggravation of dealing with the bureaucracy."*fn4 Instead Sieminski contends compliance with Reg. § 656.26(a) should not be required because that regulation is invalid. As the following discussion reflects, the federal government's broad interest in immigration law forecloses Sieminski's contention.

According to Reg. § 656.26(b)(2) Sieminski's failure to file a timely appeal pursuant to Reg. § 656.26(a) "constitute[s] a failure to exhaust available administrative remedies." Though it is true Sieminski has not pursued the last administrative remedy of an appeal, he has exhausted his administrative remedies in the sense none now remains open to him.*fn5 His time for internal administrative review has expired, and the second Notice of Findings has become a "final agency action" as required by 5 U.S.C. § 704. Policies underlying the doctrine of exhaustion of administrative remedies, as explained in Uniroyal, Inc. v. Marshall, 579 F.2d 1060, 1064 (7th Cir. 1978) are inapplicable here: It is not necessary "to defer judicial review" until the administrative process has run its course, nor is it necessary to abstain "to avoid collateral, dilatory action" in court. See also Denberg v. United States Railroad Retirement Board, 696 F.2d 1193, 1201 (7th Cir. 1983) (Wood, J., dissenting). In short, there is no reason to delay review.

Whether framed in terms of "non-exhaustion" or "waiver" or categorized in some other fashion, Reg. § 656.26(a)'s actual effect is to bar Sieminski from administrative review of the second Notice of Findings because he failed to appeal together with his employer. Thus the principal issue in this case is whether that strict condition Department places on administrative review is valid. If it is, Secretary's decision must be upheld.

Sieminski challenges Reg. § 656.26(a) as unconstitutional because it denies him due process of law.*fn6 In that respect the standard for federal alien regulations is that of minimal rationality. For example Narenji v. Civiletti, 617 F.2d 745, 747 (D.C.Cir. 1979) (citations omitted), cert. denied, 446 U.S. 957, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980) held:

  Distinctions on the basis of nationality may be drawn
  in the immigration field by the Congress or the
  Executive. . . . So long as such distinctions are not
  wholly irrational they must be sustained.

Plaintiff's rejected case in Narenji was actually stronger than Sieminski's here, for the Narenji plaintiff showed discrimination among aliens on the basis of nationality, not merely discrimination against aliens in general.

Sieminski argues discrimination against aliens in general must be subjected to strict scrutiny. But Bernal v. Fainter, ___ U.S. ___, 104 S.Ct. 2312, 81 L.Ed.2d 175 (1984) and other alien discrimination cases are not in point because they deal with "State law that discriminates on the basis of alienage" (id. at 2316). To the extent Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976) may be read as imposing that same strict scrutiny on federal government policies, it is limited in its application (id. at 114, 96 S.Ct. at 1910) to agencies having "no responsibility for foreign affairs, for treaty negotiations, for establishing immigration quotas or conditions of entry, or for nationalization policies." In fact Hampton said (id.):

  Indeed, it is not even within the responsibility of
  the Commission to be concerned with the economic
  consequences of permitting or prohibiting the
  participation by aliens in employment opportunities
  in different parts of the national market.

But because the regulation challenged here was promulgated pursuant to a provision of the Immigration and Nationality Act, and because that Act controls precisely what was distinguished by the Hampton quotation, the regulation here is a classic example of one beyond the reach of Hampton.*fn7

Reg. § 656.26(a) is surely not wholly irrational, as this Court stated in its initial memorandum opinion on the issue. To require an alien's employer to join in seeking administrative review is a rational way for Secretary to make certain the alien's job will still be available to him if he prevails, thus assuring a live controversy. Sieminski argues Reg. § 656.26(a) is invalid in this case because it punishes an alien whose job is still available but whose employer is simply "fed up . . . with the bureaucracy." That attack fails for a number of independent reasons, any one of which would suffice:

    1. Reg. § 656.26(a) need only be "not wholly
  irrational." It is not helpful to Sieminski that the
  regulation may have

  failed in this instance to vindicate the rational
  purpose supporting it, because prohibitions of over-
  and under-broad construction do not apply to policies
  subject only to minimal scrutiny.

    2. Even if Sieminski accurately states Capitol's
  ultimate point of view (but see n. 4), the fact
  remains Capitol did bring the initial request for
  certification — so a presumption of lack of interest
  drawn from its non-joinder in the appeal would
  certainly be rational. To escape that presumption
  Sieminski could have sought an administrative appeal,
  offering to Secretary the same reason for Capitol's
  non-joinder he advances here. He offers nothing to
  explain why he did not do that, and this Court will
  not conclusively presume the futility of such an

    3. Even if accepted, Sieminski's excuse indicates a
  value judgment by Capitol in market terms about the
  extent to which it wants to assert its desire to hire
  Sieminski. Thus Reg. § 656.26(a)'s effect may be
  minimally rational even in the context of the facts
  Sieminski alleges.

    4. As n. 4 reflects, to this point Sieminski's
  factual contention has been assumed accurate. But
  this Court is constrained to observe that although
  Sieminski Mem. 3 claims his excuse "is not disputed,"
  he has not proved it and defendants have not conceded
  it. As a wholly unsupported assertion it is incapable
  either of justifying summary judgment for Sieminski
  or of averting summary judgment against him. When
  Rule 56 motions are at issue parties cannot hold back
  evidence and may be held to the consequences if they
  do. See Keene Corp. v. International Fidelity
  Insurance Co., 736 F.2d 388 at 393 (7th Cir. 1984),
  adopting this Court's opinion below, 561 F. Supp. 656,
  662-67 (N.D.Ill. 1983).

Thus Secretary's decision must be affirmed because he was rationally entitled to hold Sieminski was administratively foreclosed from objecting to the Certifying Officer's second Notice of Findings.*fn8


Based on the administrative record the parties have submitted, there is no genuine issue of material fact and defendants are entitled to a judgment as a matter of law. Their Rule 56 motion for summary judgment is granted and Sieminski's Rule 56 motion is denied. This action is dismissed with prejudice.

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