Reddy, Inc. v. United States Department of Labor

• Decision Date: 10 April 1974
• Docket Number: No. 73-1275.,73-1275.
• Citation: 492 F.2d 538
• Parties: REDDY, INC., et al., Plaintiffs, Vishwas B. Dhekney, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF LABOR, etc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

492 F.2d 538 (1974)

REDDY, INC., et al., Plaintiffs, Vishwas B. Dhekney, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF LABOR, etc., Defendant-Appellee.

No. 73-1275.

United States Court of Appeals, Fifth Circuit.

April 10, 1974.

A. Don Crowder, Dallas, Tex., for plaintiff-appellant.

Frank D. McCown, U. S. Atty., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., for defendant-appellee.

Before THORNBERRY, GODBOLD and CLARK, Circuit Judges.

GODBOLD, Circuit Judge:

Vishwas Dhekney, an Indian national, sought an immigrant visa for permanent residence in the United States under 8 U.S.C. § 1153(a)(3), which excludes:

Visas shall next be made available, in a number not to exceed 10 per centum of the number specified in section 1151(a) (ii) of this title, to qualified immigrants who are members of the professions, or who because of their exceptional ability in the sciences or the arts will substantially benefit prospectively the national economy, cultural interests, or welfare of the United States.

An alien seeking admission under (a) (3) must, however, show that he is not excluded from admission by reason of the provisions of 8 U.S.C. § 1182(a) (14), which provides:

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. The exclusion of aliens under this paragraph shall apply to special immigrants defined in section 1101(a) (27) (A) of this title (other than the parents, spouses, or children of United States citizens or of aliens lawfully admitted to the United States for permanent residence), to preference immigrant aliens described in sections 1153(a) (3) and 1153(a) (6) of this title, and to nonpreference immigrant aliens described in section 1153(a) (8) of this title;

The certification procedures of the Secretary of Labor are delegated to the Manpower Administration of that department "for the area of the alien's intended residence." 29 C.F.R. § 60.3(b).

To facilitate the processing of requests for certificates, the Secretary of Labor has made determinations of various categories of employment with respect to which certification will issue. This is covered by 29 C.F.R. § 60.2(a)(1):

For the categories of employment described in Schedule A at § 60.7 except for any geographic limitations therein set forth, there are not sufficient workers who are able, willing, qualified, and available for employment and the employment of aliens in such categories in such areas will not adversely affect the wages and working conditions of workers in the United States similarly employed.

With respect to various other categories certification is foreclosed by 29 C.F.R. § 60.2(a) (2):

For the categories of employment described in Schedule B at § 60.7 subject to any geographic limitations therein set forth, the certification required by section 212(a) (14) cannot now be made.

Dhekney's employment did not fall within either Schedule A or Schedule B, so that he (or a person on his behalf) was required to file a Statement of Qualifications of Alien form under 29 C.F.R. § 60.3(b). This Dhekney did through his employer, Reddy, Inc., which previously had employed him and, representing that it was unable to replace him, desired to reemploy him. Reddy identified itself on the application as engaged in "metal roll forming and fabrication." It described the job offered to Dhekney as "engineering design specialist in light gauge metals." It further described the job, and special requirements for it, thusly: "Design light gauge metal structures, estimate costs, develop light gauge metal applications, develop light gauge metal empirical test data, supervise field construction of light gauge metal structures . . . studies in elastic stability of light gauge, thin walled steel sections , familiarity with light gauge metal theory and applications."

Reddy, Inc. is a small company whose only plant is located in Dallas, Texas. Thus Dallas was the "area of the alien's intended residence." The application was filed June 26, 1972, with the Regional Manpower Administrator in Dallas. It was denied one day later, June 27, by a letter stating:

On the basis of information available to us, we cannot issue the certification required by Section 212(a) (14) of the Immigration and Nationality Act, as amended.

Reason: Available job market information will not warrant a certification of unavailability of workers in the U.S U.S. workers are available. Labor market information indicates a surplus of engineers who are willing to relocate.

The record does not reveal the "information available to the Administrator" on which these conclusions were reached.

On July 14, Reddy, on Dhekney's behalf, filed what it styled an "application for reconsideration . . . based on new facts and clarification of information not formally presented in the original request." Included was this statement:

At the suggestion of Mr. Maceo Johnson, Mr. E. W. Gloer of the National Registry for Engineers was contacted (see enclosure 2). Mr. Gloer affirmed that the combination of skills which were necessary for our purposes, i. e. a civil engineer with specialization and proficiency in the use of light gauge steel was extremely unique. He further stated that he would confirm this fact to the Department of Labor in Dallas, on request. Telephone number: (916) 445-4344.

Attached was the following memorandum signed by the president of Reddy (though undated it appears from its face to relate to a date between the denial of June 27 and the filing of the "application for reconsideration" on July 14):

This date, the undersigned and Mr. V. Dhekney, met with Mr. Johnson, Department of Labor, with regard to the determination made on the application for Alien Employment Certification for Mr. Dhekney dated, June 27, 1972. I explained to Mr. Johnson that our requirement was not for a general Civil Engineer but specifically for a Civil Engineer specializing in light gauge steel. Mr. Johnson related that he was not a specialist in engineering qualifications and that he made his determinations based on information provided him concerning the availability of engineers classified in broad categories (in this case, Civil Engineers). I explained that I had attempted to obtain another engineer with Mr. Dhekney\'s qualifications through advertising and through the Texas Employment Commission and that I was completely unsuccessful in this endeavor. Mr. Johnson stated that a determination of this type could be made by the National Registry for Engineers (NRE) in Sacramento, California and he instructed me to call or write to Mr. E. W. Gloer of NRE.

Pursuant to Mr. Johnson\'s instructions, I called Mr. E. W. Gloer and informed him of our requirements as per attached job description. In response Mr. Gloer said that an engineer proficient in light gage steel with a background of Civil Engineering was extremely rare. He agreed to confirm our conversation if the Dallas Labor & Manpower Department needed verification.

The Reviewing Officer affirmed the Certifying Officer in a written decision dated July 18. The decision defined the issue to be "the availability of qualified United States workers," and then stated, in pertinent part:

The petition for review reveals that appellant has consulted the National Registry for Engineers as to the availability of United States workers with the specific qualifications of the position under consideration. Said petition further discloses that the National Registry considered the combination of skills required by appellant employer to be unique.

Communications with the National Registry for Engineers confirmed that the combination of skills required for the position was unique. However, it is the combination of engineering skills possessed by the alien that is unique, in that a civil engineer is not usually proficient in light gauge steel. It does not follow that there are no United States engineers available with proficiency in light gauge steel. Further communication with the National Registry revealed that specialization in light gauge steel is usually one of the skills included in that of mechanical engineer. A review of said Registry discloses an ample supply of qualified mechanical engineers. Based on these facts, it is clear there is no shortage of qualified United States workers.

In addition to the foregoing, it is noted that the record in this case discloses that subject alien is to be paid $750.00 a month. Such wage is below the prevailing wage for the occupation of Civil Engineer. The prevailing wage rate for this occupation ranges from $800.00 to $1,000.00 a month.

Section 212(a) (14) (B) of the aforestated Act precludes labor certification when such would adversely affect the wages and working conditions of similarly employed United States workers. Even if we were to find that United States workers are not available, in this case, the substandard wage would still preclude the issuance of a labor certification.

Dhekney and Reddy then brought this action in the District Court for the Northern District of Texas. The United States filed a certified copy of the proceedings before the Regional Manpower Administrator, and the parties filed cross motions for summary judgment. The District Court granted summary judgment for the Government on the basis of part (A) of § 1182(a) (14), holding that the Regional Manpower Administrator did not abuse his discretion "in determining that...