First Girl, Inc. v. REGIONAL MAN. ADM. OF US DEPT. OF LAB., 72 C 1100.

• Decision Date: 28 June 1973
• Docket Number: No. 72 C 1100.,72 C 1100.
• Citation: 361 F. Supp. 1339
• Parties: FIRST GIRL, INC., Plaintiff, v. REGIONAL MANPOWER ADMINISTRATOR OF the UNITED STATES DEPARTMENT OF LABOR, Defendant.
• Court: U.S. District Court — Northern District of Illinois

361 F. Supp. 1339

FIRST GIRL, INC., Plaintiff, v. REGIONAL MANPOWER ADMINISTRATOR OF the UNITED STATES DEPARTMENT OF LABOR, Defendant.

No. 72 C 1100.

United States District Court, N. D. Illinois, E. D.

June 28, 1973.

Samuel D. Meyers, of Freedman, Freedman & Myers, Chicago, Ill., for plaintiff.

James C. Murray, Chicago, Ill., for James R. Thompson, U. S. Atty., N. D. Ill., Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

BAUER, District Judge.

This cause comes on cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This is an action seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 and review pursuant to the Administrative Procedure Act, 5 U.S.C. § 704, of defendant's denial of employment certification to certain alien stenographers who sought entry to the United States. Plaintiff, an Illinois corporation engaged in placing secretaries in various business offices on a temporary basis, proposes to bring the aforesaid aliens to the United States as its full-time employees and to use them in fulfilling its "numerous contract commitments" for temporary workers.

In March of 1971 plaintiff applied for employment certification for and on behalf of three British stenographers: Carol Ann Ford, Christine Julie Austin, and Hazel Gillian Powell. Both the applications and the subsequent request for reconsideration thereof were denied by the Regional Manpower Administrator on the grounds (1) that there was no shortage of applicants for secretarial employment whose skills met plaintiff's requirements and (2) that plaintiff did not provide for its employees fringe benefits comparable to those enjoyed by most secretaries in this employment area.

The statutory basis for the denials is 8 U.S.C. § 1182(a)(14), which provides:

"(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligibile 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 to the Attorney General that (A) there are not sufficient workers in the United States 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 to which the alien is destined 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."

The Secretary of Labor has delegated the responsibility for such determinations to the Manpower Administration, Department of Labor.

Notwithstanding defendant's contention that the discretionary nature of the denials removes them from the purview of the Administrative Procedure Act, this Court has jurisdiction over the action. Song Jook Suh v. Rosenberg, 437 F.2d 1098 (9th Cir. 1971); Golabek v. Regional Manpower Administration, 329 F.Supp. 892 (E.D.Pa.1971). However, defendant is correct in his assertion that the question for determination is whether defendant abused his discretion. Golabek v. Regional Manpower Administration, supra. The test to be applied in determining abuse of discretion is whether an examination of the administrative record reveals no evidence supporting defendant's decision. Song Jook Suh v. Rosenberg, supra; Bitang v. Regional Manpower Administrator, 351 F. Supp. 1342 (N.D.Ill.1972).

The administrative record indicates that the bases for the reviewing officer's decision were "availability data" submitted by the Illinois State Employment Service ...