Doraiswamy v. Secretary of Labor

• Decision Date: 29 December 1976
• Docket Number: Nos. 74-1847,74-2017,s. 74-1847
• Citation: 180 U.S.App.D.C. 360,555 F.2d 832
• Parties: Balaji DORAISWAMY, Appellant, v. SECRETARY OF LABOR. HONEYWELL INFORMATION SYSTEMS, INC., et al., Appellants, v. The SECRETARY OF LABOR.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 832

555 F.2d 832

180 U.S.App.D.C. 360

Balaji DORAISWAMY, Appellant, v. SECRETARY OF LABOR.

HONEYWELL INFORMATION SYSTEMS, INC., et al., Appellants, v. The SECRETARY OF LABOR.

Nos. 74-1847, 74-2017.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 5, 1975.

Decided Nov. 26, 1976.

As amended Nov. 30, 1976.

Rehearing Denied Dec. 29, 1976.

Jack Wasserman, Washington, D.C., with whom Mark A. Mancini, Washington, D.C., was on the briefs, for appellants.

Richard I. Chaifetz, Atty., Dept. of Justice, Washington, D.C., with whom John L. Murphy, Chief, Government Regulation Section, Dept. of Justice, Washington, D.C., was on the brief, for appellee.

Before TAMM, ROBINSON and MacKINNON, Circuit Judges.

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Section 212(a)(14) of the Immigration and Nationality Act bars aliens from entering the United States to perform labor unless the Secretary of Labor certifies that qualified American workers are not available therefor, and that wages and working conditions of similarly employed American workers will not be adversely affected. ¹ These consolidated appeals are from summary judgments of the District Court upholding the Secretary's denial of certifications ² separately sought by two aliens. ³ Upon examination of the administrative records ⁴ in light of the statute as we have heretofore interpreted it, ⁵ we affirm.

I

Appellant Balaji Doraiswamy, a native and citizen of India, entered the United States as a student in 1970 and over the next two years earned the degree of master of business administration. ⁶ Although his visa did not permit employment in the United States, he was hired in 1972 as a junior contract auditor by the National Railroad Passenger Corporation (AMTRAK) in Washington, D.C. A year later, Doraiswamy applied for a labor certification pursuant to Section 212(a)(14). His application was supported by AMTRAK's offer of a post as traveling contract auditor, ⁷ the minimum requirement for which was stated to be a bachelor of science degree in accounting or finance. ⁸ The application was denied on the ground that "(a)vailable job market information will not warrant a certification of unavailability of workers in the U.S." ⁹

AMTRAK then amended the job requirements to include a year's experience and, in Doraiswamy's behalf, sought reconsideration. The request was accompanied by copies of newspaper advertisements of the position in six cities, and emphasized the difficulty posed by the need to travel. ¹⁰ The earlier decision to deny the application was affirmed with the explanation that

the . . . application was (previously) disapproved . . . because resident workers were available for employment as auditors in the local area. We must conclude, after reviewing your correspondence that these workers (in excess of 40 registered with the Division of Placement of the D.C. Manpower Administration) ¹¹ remain available for the position offered. A review of the application forms on file in this occupation with the Employment Service reveals that the vast majority of these individuals forsees (sic ) the necessary qualifications to perform the job offered. There is no indication that these workers have placed travel restrictions on their employment. In the absence of such restrictions we must assume that these registrants have no objection to travel on the job and hence are willing and available, as well as qualified, for the employment opportunity described in the application. ¹²

With that, Doraiswamy came to the District Court for judicial review. His complaint alleged that AMTRAK was unable to recruit qualified contract auditors amendable to extensive travel, and that the contrary administrative conclusion rested on inadequate investigation. The Secretary moved for summary judgment on the administrative record, and Doraiswamy sought unsuccessfully to take the depositions of two administrative officials and to inspect and copy certain documents. ¹³

The District Court awarded summary judgment in favor of the Secretary. ¹⁴ The court referred to the general availability of contract auditors:

When the D.C. Manpower Administration received Doraiswamy's application and supporting data, it consulted its files and determined that it, the Manpower Administration, had files on over 100 persons in the D.C. area who had, at that time, the requisite qualifications and willingness for AMTRAK employment. ¹⁵

The court also addressed the travel factor:

When the Manpower Administration reviewing officer reconsidered the certification application as amended, he determined that more than 40 persons were available for this position. He specifically found, with respect to the travel factor asserted by (Doraiswamy's) counsel, that there was no indication from the file that any of these 40 persons had placed any travel restrictions on his availability for employment. ¹⁶

Declaring "that 'abuse of discretion may be found only if there is no evidence to support the decision' " ¹⁷ and that "the 'burden should be placed on the alien or his putative employer to prove that it is not possible for the employer to find a qualified American worker,' " ¹⁸ the court concluded that Doraiswamy "has failed to submit any data to support his conclusions. He has not carried his burden of proof." ¹⁹

II

Appellant Kenneth What Poont Lao is a native of Burma and a citizen of the Republic of China. Having entered the United States as a student in 1967, he earned the degrees of bachelor of arts in mathematics in 1969 and master of science in the technology of management in 1971. Soon thereafter, in disregard of his immigration status, he became a systems analyst for appellee Honeywell Information Systems, Inc., a manufacturer-marketer of computers and related products and services. Somewhat later, Lao submitted an application for a Section 212(a)(14) certification, and bolstered it with an offer by Honeywell of a job as systems analyst in the Washington metropolitan area. The application was denied on the ground that qualified Americans were available for the position, and on reconsideration this disposition was affirmed. ²⁰

Shortly thereafter, Lao filed a second application for a labor certification, together with a similar job offer from Honeywell. Stated as minimum requirements for the position were "(t)raining in one or more (computer) programming languages and a reasonable degree of proficiency," ²¹ and "(o)ne year of programming experience." ²² Honeywell also specified as "(n)ormal (q)ualifications" that the applicant must possess a "(c)ollege degree or equivalent plus 1 year of programming experience and specific knowledge in at least one computer programming method." ²³ This application met the same fate as the first, for the same reason.

Honeywell sought reconsideration, stating that the job offered Lao necessitated a minimum of a year's experience with its 6000 series computer systems. Honeywell asserted that Lao had acquired that experience during his employment, and that it had not been able to find anyone else who was experience-qualified. The denial of this application was affirmed:

The Professional Career Information Branch of the D.C. Manpower Administration has numerous qualified applicants listed in their files who are available for employment, and this is just one of the many recruitment sources available to employers in the Washington Metropolitan Area. These workers possess the basic education, training and experience in systems analysis normally required for proficiency in this occupation. In view of the available manpower to fill this position, the specific requirement of experience on 6000 series computers must be regarded as training which is normally required (sic ) on the job. ²⁴

Five months later Lao, again with Honeywell's support, submitted his third and final application for certification. Honeywell designated as minimum job requirements a bachelor's degree in mathematics, "(t)raining in one or more programming languages and a reasonable degree of proficiency," ²⁵ and "(o)ne year of programming experience." ²⁶ Honeywell professed its willingness to hire an available domestic worker, and stated that the position had been advertised in Washington newspapers without satisfactory results. This application, like its forerunners, was denied for the reason consistently advanced earlier. An intra-agency memorandum noted that despite Honeywell's alleged difficulty in recruiting systems analysts with 6000 series computer systems experience, Lao did not have that experience when originally hired, and was no better qualified than any of numerous systems analysts available. ²⁷

As on previous occasions, Honeywell submitted a request for reconsideration based "on the fact that (Lao) has gained considerable experience over the past year while working on our Honeywell 6000 computer systems and the fact that there is a decided lack of available qualified 6000 Systems Analysts." ²⁸ Honeywell represented that it had placed recruitment advertisements in newspapers and had listed openings with federal, state and private employment services without satisfying its need for analysts with Honeywell 6000 computer systems experience. The application for certification was again rejected on the ground that American workers were available for the position:

The . . . application was disapproved . . . because there were resident workers available in the occupation of systems analyst. This occupation is included among those classified as Professions, Sciences or Arts. In making a determination, the requirements indicated on the job offer were not considered. The initial determination was based only on the availability of and adverse effect on resident workers in the occupation. . . .

A careful review of the material submitted indicates that the alien has received only 19 days of formal training other than...