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SIEMINSKI v. DONOVAN

July 24, 1984

BOGDAN SIEMINSKI, PLAINTIFF,
v.
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 granted.

Facts

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
  made:

(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 ...


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