Ratnayake v. Mack, 73-1865

• Decision Date: 12 June 1974
• Docket Number: No. 73-1865,73-1866.,73-1865
• Parties: Angela RATNAYAKE and the Town and Country Montessori School, Appellants, v. Anita MACK, Regional Certifying Officer, Manpower Administration, U. S. Department of Labor, Appellee. Chandrika JAYASEKERA and the Highland Park Montessori School, Appellants, v. Anita MACK, Regional Certifying Officer, Manpower Administration, U. S. Department of Labor, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

499 F.2d 1207 (1974)

Angela RATNAYAKE and the Town and Country Montessori School, Appellants, v. Anita MACK, Regional Certifying Officer, Manpower Administration, U. S. Department of Labor, Appellee.

Chandrika JAYASEKERA and the Highland Park Montessori School, Appellants, v. Anita MACK, Regional Certifying Officer, Manpower Administration, U. S. Department of Labor, Appellee.

Nos. 73-1865, 73-1866.

United States Court of Appeals, Eighth Circuit.

Submitted March 14, 1974.

Decided June 12, 1974.

Rehearings and Rehearings Denied August 13, 1974.

John F. Niemeyer, W. St. Paul, Minn., for appellants.

Stephen G. Palmer, Asst. U. S. Atty., Minneapolis, Minn., and Richard J. Fiore, Atty. Dept. of Labor, Washington, D. C., for appellee.

Before GIBSON, BRIGHT and STEPHENSON, Circuit Judges.

Rehearings and Rehearings En Banc Denied August 13, 1974.

STEPHENSON, Circuit Judge.

The issues to be resolved on this appeal are whether the district court had jurisdiction to review the Secretary of Labor's denial of labor certification under 8 U.S.C. § 1182(a)(14) (1970) and, if so, did the Secretary¹ abuse his discretion in denying certification in this case.

Appellants Ratnayake and Jayasekera are alien Montessori school teachers who have entered the United States from Ceylon as temporary non-immigrant exchange visitors pursuant to 22 U.S.C. § 2451 et seq. (Supp.1974). During this period, appellant Ratnayake taught at appellant Town and Country Montessori School in Richfield, Minnesota. Appellant Jayasekera was employed by appellant Highland Park Montessori School located in St. Paul, Minnesota. Appellant schools subsequently decided to attempt to retain appellant teachers beyond the two-year period that they were then allowed to stay under the exchange-visitor program. In order to obtain immigrant visas for permanent residence, the schools were required to file, on behalf of appellant teachers, a request for a sixth preference visa from the Attorney General.² 8 U.S.C. § 1153(a)(6) (1970). This visa is granted to certain qualified immigrants who desire to perform skilled or unskilled labor for which a shortage of "employable and willing persons exists in the United States." The Attorney General is unable to issue the sixth preference visa until he receives a proper labor certification from the Secretary of Labor. Certification is not to be granted unless the Secretary finds 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. * * * 8 U.S.C. § 1182(a)(14) (1970).

Appellants filed all of the certification application forms that are required by 29 C.F.R. § 60.1 et seq. (1973). Appellant teachers were informed of the denial of labor certification by the receipt of a form letter from appellee which contained merely a mark beside a sentence specifying that "United States workers are available for this occupation." In addition, appellant Jayasekera was denied certification because it was asserted that her wage offer was below the prevailing wage scale.

Appellants commenced this suit requesting that the certification denials be set aside. The trial court, after a hearing, remanded the matter to the Secretary of Labor for further documentation and amplification of the basis for appellee's determination. The Secretary reaffirmed the certification denials and submitted additional material to support his conclusion. The trial court, after reviewing this material, granted appellee's motion for summary judgment. 365 F. Supp. 954 (D.Minn.1973). This appeal followed.

Our initial inquiry is whether the trial court properly concluded that it had jurisdiction of the case. Although the Immigration and Naturalization Act fails to explicitly provide for judicial review of the Secretary of Labor's denial of labor certification, this does not indicate that judicial review of that determination was intended to be unavailable. Association of Data Processing Service Org., Inc. v. Camp, 397 U.S. 150, 156-157, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Judicial review may still be available pursuant to section 10 of the Administrative Procedure Act, 5 U.S.C. § 701 (1967), which provides that such review is available except to the extent that:

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by law.

Appellee alleges that the latter exclusion is applicable to the present case in that the Secretary of Labor has been statutorily vested with the discretionary power to grant or deny labor certification under section 1182(a)(14), and thus his decision is not judicially reviewable. Based upon recent decisional law, as well as the import and application of section 1182(a)(14), we cannot agree.

It must be recognized at the outset that judicial review is the rule, not the exception, and nonreviewability is "not lightly to be inferred." Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), the Court stated that the preclusion of judicial review for action committed to agency discretion by law is "a very narrow exception." Id. at 410. Judicial review should be disallowed only in those "rare instances" where the "statutes are drawn in such broad terms that in a given case there is no law to apply." Id. at 410, quoting from S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945).

In Overton Park, the Secretary of Transportation was required by the Department of Transportation Act and the Federal-Aid Highway Act to disapprove any highway plan affecting public parkland unless it was shown that no alternate plan was feasible and all harm to the park was minimized. The Court held that there was plainly "law to apply" because the Secretary was required by statute to consider factors such as cost, disruptive effect in the area and directness of route in making his determination. Therefore, judicial review of his decision was available.

In 8 U.S.C. § 1182(a)(14), the Secretary of Labor is required to ascertain the status of the labor market in a particular occupation, the number of American workers willing and able to work, the extent to which such workers are available and qualified for a particular job, and the prevailing wage scale for workers similarly situated. These factors must all be considered when the Secretary is preparing to rule upon a labor certification application. As in the Overton Park case there is obviously "law to apply" under these circumstances, and thus the Secretary's determination is not "committed to agency discretion by law." We hold that the trial court properly assumed jurisdiction of this case. Our conclusion is supported by similar holdings of the First, Fifth and Seventh Circuits. They have recently held that the Secretary's denial of labor certification is judicially reviewable under similar circumstances. Digilab, Inc. v. Secretary of Labor, 495 F.2d 323 (CA1 filed March 22, 1974); Reddy, Inc. v. United States Department of Labor, 492 F.2d 538 (CA5 filed April 10, 1974); Secretary of Labor v. Farino, 490 F.2d 885 (CA7 1973).³ See also, Mendez v. Major, 340 F.2d 128 (CA8 1965).

The determination reached by the Secretary is not to be set aside unless it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1967). The trial court's "inquiry into the facts before the Secretary is to be searching and careful" and it must overturn the findings and conclusions of the Secretary if they are not "based on a consideration of the relevant factors and * * * there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971); accord Secretary of Labor v. Farino, 490 F.2d 885, 889-890 (CA7 1973).

Appellant teachers, natives of Ceylon, have been trained in the Montessori method⁴ at a Ceylon training center which operates under the auspices of the Association Montessori Internationale (A.M.I.). At the conclusion of the two-year training program, each was certified by the A. M. I.

Appellant schools, both of which are affiliated with A. M. I., have made a policy decision that A. M. I. certified teachers are better trained and qualified, and thus can conduct Montessori classes more effectively. Therefore, both schools have concluded that preference will be given to A. M. I. certified teacher applicants when a teaching vacancy arises. Due to the pronounced shortage of American A. M. I. certified teachers, appellant schools were forced to offer employment to aliens, such as appellants Ratnayake and Jayasekera, who had received their A. M. I. certification in foreign countries.

The reasons posited by the Secretary for denying labor certification to appellant teachers were that there is a surplusage of unemployed and underemployed college-educated American teachers; that these American teachers could, with a minimum of training, perform the employment functions that appellant teachers had applied for; that the job requirements established by appellant schools were unreasonable and unduly restrictive; and that disregarding the unreasonable job requirements, there were sufficient American teachers who were able, willing, qualified and available for the jobs.

In comparing the Montessori method with the more traditional method of education, there are obvious dissimilarities.⁵ Since each takes a different approach to education, the training and skills of a teacher for one is not necessarily compatible with those needed and utilized in the other. Mr. S. P. Marland,...