Acupuncture Center of Washington v. Dunlop, 74-1050
| Decision Date | 04 October 1976 |
| Docket Number | No. 74-1050,74-1050 |
| Citation | 543 F.2d 852,177 U.S.App.D.C. 367 |
| Parties | ACUPUNCTURE CENTER OF WASHINGTON and Yann Theresa Kao v. John T. DUNLOP, Secretary of Labor, and Lorenzo M. White, acting Director, Office of Employment Service, Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Richard I. Chaifetz, Atty., Dept. of Justice, with whom John L. Murphy, Chief, Government Regulations Section, Crim. Div., Dept. of Justice, was on the brief, for appellants.
Arnold P. Lutzker, Washington, D. C., with whom Daniel M. Redmond, Washington, D. C., was on the brief, for appellees.
Before LUMBARD, * Senior Circuit Judge for the Second Circuit, and McGOWAN and ROBINSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
This controversy stems from decisions of the Secretary of Labor 1 declining to certify the existence of conditions, set by Section 212(a)(14) of the Immigration and Nationality Act, 2 which would enable appellee Yann Theresa Kao to remain in the United States as an alien performing labor for appellee Acupuncture Center of Washington. In their suit for declaratory relief, the District Court entered a summary judgment remanding the case for further administrative proceedings, 3 and the Secretary now appeals. We find, upon scrutiny of the administrative record, 4 that our decision in Pesikoff v. Secretary of Labor, 5 rendered during pendency of the appeal, requires us to sustain the Secretary's position.
In relevant part, Section 212(a)(14) calls for exclusion from the United States of aliens seeking to perform skilled or unskilled labor unless the Secretary determines and certifies that two circumstances coexist. 6 The first is that "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." 7 The second is that "the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed." 8 In the case at bar, the Secretary refused a certification and the District Court, holding that the Secretary abused his discretion, returned the case to him for additional proceedings. 9
Our review has encompassed careful analysis of the challenged decisions, administrative and judicial, as well as their common background. This opinion examines the application for certification, 10 the Secretary's determinations 11 and the District Court's disposition. 12 It then identifies the governing legal principles. 13 It concludes with an application of those principles to the Secretary's adjudications and an exposition of the reasoning compelling us to differ with the District Court. 14
Ms. Kao, an alien, was admitted to the United States in January, 1970, as a nonimmigrant student. 15 She attended college in Kansas until May, 1972, 16 and worked as a Chinese-English interpreter in New York from July to December of that year, 17 when she assumed her present employment at Acupuncture Center of Washington. Shortly thereafter, the Center submitted an application for an alien employment certification 18 to the Department of Labor. 19 In addition to a summary of Ms. Kao's qualifications, 20 including varying degrees of fluency in English and Chinese dialects, 21 the application set forth the Center's offer of a job as senior interpreter, bookkeeper and administrator. 22 The employee's duties were described thusly:
Employer amploys (sic ) numerous Chinese practitioners of Acupuncture who speak various dialects of Chinese and little English. These practitioners are supervised by one or more licensed MD's. Alien applicant will be required to intelligently perform various administrative tasks for the Chinese practitioners, who communicate in Chinese. In addition, alien applicant will act as interpretor (sic ) between American patients and Chinese practitioners.
Alien will also be responsible for all bookkeeping. 23
The application specified as minimum job requirements a high school diploma, four years of collegiate study, a bachelor of arts degree as an English major, a degree in accounting or equivalent experience, and two years' experience as a bilingual secretary. 24 As special requirements, the job offer stated that the employee "(m)ust be intelligent, personable and able to communicate in English and various dialects of Chinese." 25 As readily seen, these prerequisites matched Ms. Kao's credentials. 26
As thus formulated, the application was disapproved by the Secretary 27 "because resident workers were available to perform the required job duties" 28 and "because the job requirements were too restrictive." 29 By separate letters from the Center 30 and its counsel, 31 reconsideration of that disposition was requested. Counsel's letter recited that Ms. Kao spoke "many Chinese dialects," 32 "act(ed) in a laision (sic ) capacity between Chinese and American Doctors and patients" 33 and "translate(d) medical terminology which is vital to the functioning of the center." 34 The Center's letter declared that Ms. Kao
function(s) as interpreter(), speaking fluent Chinese, English, Mandarin, Cantonese and Shanghai dialects. 35 Many applicants for (the) position () were interviewed, but failed to speak the requisite number of dialects. Not all the Doctors at the Center speak the same dialect, and therefore for accurate translation between Chinese Doctor, American Doctor and patient, such fluency is a requisite. 36
That letter also laid claim to a "proficient understanding of Acupuncture terminology and science" by Ms. Kao 37 and, while acknowledging "that there are a number of Chinese speaking people in the Washington area who can translate into English," 38 asserted that Ms. Kao's "broad translating abilities and intimate knowledge of Acupuncture practice and terminology provides the Center with talent which is not easily replaced." 39 The letter further stated that the Center had
directed the placing of numerous advertisements for skilled and multi-lingual translators in many Chinese newspapers including the China Post and The Chinese Journal . . . but the responses have been very poor. Those who did answer the advertisements did not possess the diverse dialect translation abilities of (Ms. Kao), nor (her) intimate knowledge of Acupuncture terminology and practice. 40
In addition to these communications, the administrative record reflects that the application for certification was amended to remove the job requirements earlier held to be unduly restrictive. 41
On reconsideration, the Secretary adhered to his original disposition. 42 While the amendment of the application had eliminated the job requirements partly responsible for the earlier decision, the Secretary advised that
based on information available to this office, we must conclude that sufficient resident workers remain available in the Washington Metropolitan Area to perform the job duties required. While we recognize that you may prefer workers who are familiar with acupuncture terminology and practice, this does not appear to be a necessary occupational consideration and only impedes effective recruitment of an otherwise qualified local worker. 43
So, the Secretary concluded, "(i)ssuance of certification() under the circumstances described above would be contrary to the provisions of the immigration law." 44
The administrative record reveals the foundations upon which the essential elements of the Secretary's decisions rested. 45 As to availability of domestic workers, the Secretary said:
In processing the initial application, contact was made with Mr. Winston Tsai, legal counselor to the D. C. Chinese Cultural Association and the Formosan Club of America, Incorporated. Mr. Tsai indicated a total membership in both organizations of 600 U.S. Citizens who are native Chinese. Many of the members are students or unemployed businessmen who would be available for full-time employment as Chinese interpreters. Mr. Tsai indicated that in excess of 15 of those available possessed knowledge of English and various Chinese dialects. . . . 46
Recent availability contacts reveal that there are qualified Chinese interpreters available in the local area who generally possess knowledge of one or two different dialects. D. C. Manpower Administration files show four Chinese interpreters one of whom is fluent in both the Mandarin and Cantonese dialects. The remaining three do not specify the dialects spoken, and attempts to contact these applicants for further information have been unproductive. The Language Services Division of the Department of State (Mr. Fukuda) can refer two applicants with fluency in Mandarin Chinese but feels it would be difficult to locate interpreters with fluency in three dialects. Winston Tsai has advised that he has two applicants available for immediate referral, one of whom possesses fluency in Mandarin, Cantonese and Shanghai dialects the combination specifically required by the employer. The second applicant is fluent in Mandarin, Shanghai and Taiwanese. Mr. Tsai has indicated that he will forward a letter advising of the availability of these two applicants. 47
The Secretary added:
In addition, the clientele to be served by such an establishment in this community obviously must be primarily English speaking. Consequently, the Chinese language requirements are apparently identified as a necessary requirement to communicate with the practitioners. Assuming that the practitioners communicate with each other in one or two common dialects, it is difficult to understand the requirement for numerous Chinese dialects as a necessity. The letter of...
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