Pesikoff v. Secretary of Labor, 72-2206

• Decision Date: 25 November 1974
• Docket Number: No. 72-2206,72-2206
• Citation: 163 U.S.App.D.C. 197,501 F.2d 757
• Parties: Richard B. PESIKOFF et al., Appellants, v. The SECRETARY OF LABOR.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 757

501 F.2d 757

163 U.S.App.D.C. 197

Richard B. PESIKOFF et al., Appellants, v. The SECRETARY OF LABOR.

No. 72-2206.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 18, 1973.

Decided May 3, 1974, Rehearing Denied May 31, 1974,

Certiorari Denied Nov. 25,1974, See 95 S.Ct. 525.

Jack Wasserman, Washington, D.C., with whom Benjamin M. Parker, Washington, D.C., was on the brief, for appellants.

Richard I. Chaifetz, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U.S. Atty. at the time the brief was filed, was on the brief, for appellee.

Before WRIGHT, ROBINSON and MacKINNON, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

Appellants seek review of a decision of the Secretary of Labor denying certification for appellant Quintero to enter the United States as an alien seeking to perform skilled or unskilled labor. Appellants filed in the District Court a complaint requesting, pursuant to 28 U.S.C. 2201 (1970) and 5 U.S.C. 704 (1970), a declaratory judgment that the Secretary's decision was an unlawful exercise of his authority under Section 212(a)(14) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(14) (1970). The District Court dismissed the complaint for failure to state a cause of action, and this appeal followed. We find that the Secretary, in declining to grant certification, did not abuse the discretion vested in him by Section 212(a)(14) and affirm.

I

Appellant Pesikoff is a Houston child psychiatrist. His wife was a law student when this action was commenced. They are the parents of two preschoolage children. Because of the time demands on him and his wife, Dr. Pesikoff felt it important that he obtain help in caring for his household. He states he attempted to find such assistance through newspaper advertisements, employment agencies, and inquiries with friends. He learned from the latter source that appellant Quintero, a citizen of Mexico with experience in caring for children, was available to work as a live-in maid. Dr. Pesikoff entered into a contract with Ms. Quintero under which she was to be paid $70 per week plus room and board for providing washing, ironing, cooking, and care for the two Pesikoff children. Though Ms. Quintero was to live in, Dr. Pesikoff represented to the Secretary that her work day was to have been only from 8:00 a.m. to 12:00 noon and from 2:00 p.m. to 6:00 p.m.

On or about July 20, 1971 appellants submitted a request to the Department of Labor that the Secretary, pursuant to Section 212(a)(14), certify Ms. Quintero for immigration into this country for the purpose of being employed by the Pesikoffs as a live-in maid. Section 212(a)(14) provides for exclusion from the United States of:

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. * * *

8 U.S.C. 1182(a)(14). A Department of Labor Manpower Administration officer in Dallas, Texas, to whom the Secretary's authority under this provision had been delegated, informed Dr. Pesikoff on July 28, 1971 that the Secretary could not issue for Ms. Quintero the certification required by Section 212(a)(14) because available job market information did not show that United States workers were unavailable for the job Ms. Quintero was to perform. Before denying Dr. Pesikoff's request the certifying officer had been advised by the Texas Employment Commission that there were approximately 180 maids registered in the Commission's Houston office. The Employment Commission also advised that inquiries of employers and perusals of newspaper advertisements enabled it to estimate that in excess of 100 maids were available for work. The Commission indicated, however, that very few of the registered workers would accept jobs that required cooking and that none were willing to live in.

In affirming the certifying officer's decision, the Labor Department's Assistant Regional Manpower Administrator in Texas cited the Employment Commission's report on the general availability of maids in Houston. The Administrator stated that the absence in Houston of maids willing to live in was irrelevant to the Pesikoff application because 'based on the job described and hours of work, the live-in requirement is a personal preference and not a necessity in the performance of the job.' In March 1972 appellants filed in the District Court their complaint against the Secretary, dismissal of which we now review.

II

The Secretary contends that we must affirm the dismissal because both appellant Pesikoff and appellant Quintero lack standing to challenge denial of Section 212(a)(14) certification. Inasmuch as we hold that Dr. Pesikoff, as the prospective employer of the alien for whom certification was sought, does have standing and because Dr. Pesikoff and Ms. Quintero have jointly sought judicial review, it is not necessary for us to consider whether Ms. Quintero, as an alien outside the country, may also challenge denial of her certification.

The Supreme Court has held that Section 10(a) of the Administrative Procedure Act ¹ confers standing to obtain review of administrative actions upon those parties who allege 'that the challenged action had caused them (an) 'injury in fact,' * * * to an interest 'arguably within the zone of interests to be protected or regulated' by the statutes that the agencies were claimed to have violated.' Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972). See Assn of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 686-690, 93 S.Ct. 2405, 37 L.Ed.2d 235 (1973). An application of the Supreme Court's principles of standing to this case generates our conclusion that Dr. Pesikoff may seek judicial review of Ms. Quintero's certification denial. First, if Dr. Pesikoff is correct in alleging that he cannot find an American worker who is able to perform the domestic tasks which Ms. Quintero has contracted to perform, he has clearly suffered an 'injury in fact' by the certification denial, for the Secretary's certification is a necessary precondition for Ms. Quintero to enter the United States to work for Dr. Pesikoff. Second, this injury is to an interest-- that of American employers in obtaining qualified employees-- arguably within the zone of interests to be protected or regulated by Section 212(a)(14). The section on its face suggests a congressional accommodation between this employer interest and the interest of American workers in being protected from importation of foreign labor which could affect their wages and working conditions or even eliminate their jobs. Though this accommodation takes the form of regulation of the employer's pursuit of his interest and the regulation subordinates this pursuit to the protection of American workers, the employer's need for qualified workers is clearly not ignored by the section. ²

The Secretary bases his claim that prospective employers such as Dr. Pesikoff lack standing to invoke judicial review of his exercise of Section 212(a)(14) authority on three cases: Braude v. Wirtz, 9 Cir., 350 F.2d 702 (1965); Cobb v. Murrell, 5 Cir., 386 F.2d 947 (1967); Intercontinental Placement Service, Inc. v. Shultz, 3 Cir., 461 F.2d 222 (1972). None of these cases gives us pause. The Braude and Cobb courts did decline to grant standing to prospective employers to challenge certification denials, but these decisions were entered prior to the Supreme Court's liberalizing clarification of standing in Data Processing and Barlow, supra. The Braude and Cobb courts employed the old strict 'legal right' test in applying Section 10(a) of the Administrative Procedure Act; since Data Processing and Barlow this test has been superseded by the two-step 'injury in fact'-- 'zone of interests' analysis utilized above. ³ The Secretary's third case, Intercontinental Placement Service (IPS), was decided after Data Processing and Barlow and indeed relied on the two-step analysis which they established. The IPS court relied on this analysis, however to deny standing to an employment agency which locates positions for aliens with American employers. Though we do not necessarily concur in the IPS court's holding, we note that our grant of standing to a prospective employer need not conflict with that court's denial of standing to an employment agency for aliens.

We note finally that our grant of standing to Dr. Pesikoff is given direct support by Secretary of Labor v. Farino, 7 Cir., 490 F.2d 885 (1973), decided the day after oral argument in our case. The Farino court, applying the 'injury in fact'-- 'zone of interest' analysis, held that prospective employers have standing to seek review of denials of Section 212(a)(14) certifications. ⁴

III

Having resolved the threshold standing issue in favor of appellant Pesikoff, we turn to the merits of his challenge to the Secretary's denial of Ms. Quintero's certification. Dr. Pesikoff asserts that the Secretary's denial constituted an abuse of his discretion under Section 212(a)(14) because it was based on insufficient evidence. ⁵ More specifically, Dr. Pesikoff argues that the Secretary should have presented evidence sufficient to prove that there were particular workers available, willing, able, and qualified to...