Hsing v. Usery

• Decision Date: 23 August 1976
• Docket Number: Civ. A. No. 75-1515.
• Citation: 419 F. Supp. 1066
• Parties: Hsu-Yang HSING, Plaintiff, v. W. J. USERY, Jr., Secretary of Labor, United States Department of Labor, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

419 F. Supp. 1066

Hsu-Yang HSING, Plaintiff, v. W. J. USERY, Jr., Secretary of Labor, United States Department of Labor, Defendant.

Civ. A. No. 75-1515.

United States District Court, W. D. Pennsylvania.

August 23, 1976.

George Shorall, Howard T. Gilfillan, Pittsburgh, Pa., for plaintiff.

Blair A. Griffith, U. S. Atty., Pittsburgh, Pa., Stephen Ernst, U. S. Dept. of Labor, Philadelphia, Pa., for defendant.

OPINION

McCUNE, District Judge.

Petitioner seeks judicial review under the Administrative Procedure Act (APA), 5 U.S.C.A. §§ 701-706 of a final administrative agency action by the Manpower Administration of the U.S. Department of Labor refusing to grant him an employment certification as required by 8 U.S.C.A. §§ 1151, 1153, and 1182. Petitioner's request for reconsideration of the administrative decision has also been denied.

Defendant has moved to dismiss plaintiff's complaint or in the alternative for Summary Judgment contending that (1) plaintiff's complaint based solely upon the APA affords no proper statutory basis for jurisdiction of this court in the subject matter of this action, (2) plaintiff's action against the Secretary of Labor, U.S. Department of Labor, is barred by the doctrine of Sovereign Immunity, and (3) the Assistant Regional Director for Employment and Training (ARDET) of the Manpower Administration, U.S. Department of Labor, did not abuse his discretion in denying labor certification to the plaintiff.

Statement of Facts

Plaintiff is a non-immigrant alien, a citizen of the Republic of China, and currently resides in East Pittsburgh, Pennsylvania. Prior to entering the United States, plaintiff attended the National Taiwan University, Taipei, Taiwan, from September, 1964, until June, 1968, where he received a Bachelor of Science Degree in mechanical engineering. He thereafter entered the United States under an F-1 (student) visa and attended the University of Mississippi from January, 1972, until June, 1972, and the University of Texas at Austin, Texas, from September, 1972, until May, 1974, where he obtained a Master of Science degree in mechanical engineering.¹

On February 27, 1974, plaintiff began working as a mechanical engineer for the Westinghouse Electric Corporation, East Pittsburgh, Pennsylvania. His duties as a mechanical engineer were described as follows:²

"Conduct theoretical analysis and experimental work in the mechanical engineering field to improve the performance of large rotating machines—large generators, large A.C. & D.C. motors, etc."

On October 7, 1974, Westinghouse filed Form MA7-50B (Job Offer for Alien Employment) with the Department of Immigration and Naturalization for the plaintiff. No action was taken upon this filing, and plaintiff, on February 18, 1975, filed Form MA7-50A (Application for Alien Employment Certification).³ These applications were forwarded to the U.S. Department of Labor on June 4, 1975. On July 2, 1975, the certifying officer of the U.S. Department of Labor denied the request for certification stating that (as of March 31, 1975), "State employment agencies in Region III have 165 more qualified applicants than openings for mechanical engineers,"⁴ and, therefore, ". . . qualified American workers were available to perform the job duties as described on the application."⁵

Pursuant to 29 C.F.R. § 60.4(b), Westinghouse appealed this decision on July 22, 1975.⁶ On July 30, 1975, the denial of plaintiff's certification was affirmed by the Assistant Regional Director for Manpower, U.S. Department of Labor,⁷ who stated, "There were qualified resident workers registered with State employment agencies in Region III for the position of mechanical engineer."

Thereafter, further requests for reconsideration of the denial of certification were made, and were accordingly denied on the basis that the review decision of July 30, 1975, was final and that there were no provisions for further administrative review.⁸

On October 30, 1975, Westinghouse filed an amended Job Offer for Alien Employment.⁹ However, since it was filed subsequent to the final administrative decision, it was not considered by the ARDET.

In response to the administrative decisions and a possible deportation action,¹⁰ plaintiff brought suit on November 25, 1975, alleging as his sole jurisdictional basis the Administrative Procedure Act. However, pursuant to a stipulation entered into between the parties, and approved by this court on December 29, 1975, plaintiff's case was remanded to the Regional Manpower Administration of the U.S. Department of Labor for further reconsideration for a 90 day period.

Further research by the ARDET revealed that as of January 29, 1976, there were 372 mechanical engineers registered for employment assistance in Region III, 289 possessing a Bachelor of Science Degree in mechanical engineering, 83 possessing a Master of Science Degree in mechanical engineering and 25 having a work background in power distribution on large generators. In response to a request from the ARDET that information be supplied regarding Westinghouse's recruitment efforts to obtain an United States worker to fill the position occupied by the plaintiff, Westinghouse stated in effect that applicants had been "generally" interviewed for plaintiff's engineering position but that ". . none were found having the qualifications already possessed by plaintiff." Further, Westinghouse expressed the belief that no matter how many applicants were to be considered, a replacement could not be obtained without a serious loss in effectiveness to plaintiff's development group and without considerable expense in training such other individual.¹¹

As a result, on March 30, 1976, the ARDET once again denied labor certification to plaintiff for the reason that there were sufficient resident workers available to fill the position held by the plaintiff.

I

The threshold issue for this court's consideration is whether jurisdiction exists in this instance where plaintiff's complaint is based solely on the Administrative Procedure Act, 5 U.S.C.A. §§ 701-706, which provides for judicial review of agency actions. The Government contends that plaintiff has misplaced his reliance on the APA as the sole basis for jurisdiction in this court. In support of its argument the Government relies chiefly upon Zimmerman v. U.S. Government, 422 F.2d 326, 330-331 (3d Cir. 1970) for the proposition that the APA is remedial in nature and cannot serve as an independent basis for jurisdiction, citing Local 542, International Union of Operating Engineers v. N.L.R.B., 328 F.2d 850, 854 (3d Cir. 1964), cert. den. 379 U.S. 826, 85 S.Ct. 52, 13 L.Ed.2d 35 (1964). We note that subsequent Third Circuit cases have repeatedly held that the APA does not confer jurisdiction upon federal courts over cases not otherwise within their competence¹² but find plaintiff's argument to the contrary persuasive on this point.

In immigration and naturalization cases there is a general tendency to favor judicial review of administrative action. Estrada v. Ahrens, 296 F.2d 690, 695 (5th Cir. 1961). Indeed judicial review of agency action has broadened considerably in scope in recent years. See: Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

Plaintiff has cited ample authority to support this court's jurisdiction in this instance. We note further that other district and circuit courts have upheld their jurisdiction to review certification denials where there is an alleged abuse of discretion.¹³ Likewise, the Third Circuit¹⁴ in the case of Golabek v. Regional Manpower Administration, 329 F.Supp. 892, 894 (E.D.Pa. 1971), had held that district courts have jurisdiction to review the findings of the Secretary of Labor made pursuant to § 212(a)(14) of the Immigration and Nationality Act, as amended, 8 U.S.C.A. § 1182(a)(14). However, that review is qualified to the extent that it is limited to determining whether the Secretary abused his discretion or committed an error of law. See also: Seo v. U.S. Department of Labor, 523 F.2d 10, 12 (9th Cir. 1975); Yusuf v. Regional Manpower Administration, etc., supra, n. 13.

Therefore, we find that the Administrative Procedure Act does provide a jurisdictional basis for plaintiff's suit based upon a denial of an employment certification as required by 8 U.S.C.A. § 1182(a)(14).

II

Defendant next contends that even if the agency's determination is deemed reviewable by this court, plaintiff's suit is nevertheless barred by the doctrine of sovereign immunity. In support of this argument, the defendant relies primarily upon Larson v. Domestic and Foreign Commerce Corporation, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). However, we do not find that this doctrine serves as a complete bar in cases of this nature.

The Fourth Circuit, in Littell v. Morton, 445 F.2d 1207, 1213 (4th Cir. 1971),¹⁵ stated that the doctrine of sovereign immunity applies independently of the judicial review provisions of the APA. Thus, having concluded that judicial review is available to plaintiff under the APA, sovereign immunity may nevertheless still act as a bar to plaintiff's action. Yet, as in Littell v. Morton, supra, we find that the justifications for the doctrine's application are not compelling here. In no way does the plaintiff's action constitute a ". . . substantial bothersome interference with the operation of government,"¹⁶ nor will the effect of a judgment for plaintiff be to "restrain the Government from acting, or to compel it to act." Littell v. Morton, supra, at page 1213. Indeed the Government has already acted by denying plaintiff's request for an employment certification. Thus, the Government's argument on this point¹⁷ is not persuasive in light of the recent case of Yusuf v. Regional Manpower Administration of the U.S. Department of Labor, supra, note 13, involving an alien certification proceeding, wherein the court stated that an alien's suit...