SECRETARY OF LABOR OF UNITED STATES v. Farino, 73-1071.

• Decision Date: 19 December 1973
• Docket Number: No. 73-1071.,73-1071.
• Parties: SECRETARY OF LABOR OF the UNITED STATES et al., Defendants-Appellants, v. Phil FARINO and Hoe Kow Cantonese Restaurant, Plaintiffs-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

490 F.2d 885 (1973) SECRETARY OF LABOR OF the UNITED STATES et al., Defendants-Appellants, v. Phil FARINO and Hoe Kow Cantonese Restaurant, Plaintiffs-Appellees.

No. 73-1071.

United States Court of Appeals, Seventh Circuit.

Heard October 30, 1973.

Decided December 19, 1973.

James R. Thompson, U. S. Atty., William T. Huyck and James K. Toohey, Asst. U. S. Attys., Chicago, Ill., for defendants-appellants.

Nathan T. Notkin, Chicago, Ill., for plaintiffs-appellees.

Before SWYGERT, Chief Judge, and CUMMINGS and STEVENS, Circuit Judges.

CUMMINGS, Circuit Judge.

In this action, plaintiff Phil Farino, the owner of an automobile service station in Chicago, sought an Alien Employment Certification so that he could continue to employ an Israeli alien, Reuben Zippershtein, as a foreign auto mechanic. The other plaintiff, Hoe Kow Cantonese Restaurant, also located in Chicago, sought an Alien Employment Certification for Chinese alien Tin Sang Lo so that he could remain in its employ as a Cantonese cook.¹ Both Alien Employment Certifications had been denied by the Department of Labor's Manpower Administration.

Before aliens such as those plaintiffs seek to employ can qualify for sixth preference visas for permanent residence in the United States under 8 U.S. C. § 1153(a)(6),² the Secretary of Labor must certify that the aliens' entry into the domestic labor market will not adversely affect American labor. Thus 8 U.S.C. § 1182(a)(14) provides:

"(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:

* * * * * *

"(14) 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 Government argues that Congress has committed such labor certification determinations to the discretion of the Secretary of Labor so that judicial review is prohibited under Section 10 of the Administrative Procedure Act (5 U. S.C. § 701(a)). It argues further that if the determination is reviewable, plaintiffs lack standing to seek review.

In an unreported decision and order, the district court held that a refusal to certify is non-discretionary and thus subject to review under the Administrative Procedure Act.³ It also held that plaintiffs were adversely affected or aggrieved by the defendants' decision and therefore had standing to sue. The court concluded that the denials of the certifications were unsupported by facts and therefore must be set aside as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" under Section 10(e)(2)(A) of the Administrative Procedure Act (5 U.S.C. § 706(2)(A)). Pursuant to its authority to "compel agency action unlawfully withheld" (5 U.S.C. § 706(1)), the court ordered defendants to issue the requested alien certifications. We affirm in part and reverse in part.

Reviewability and Standing

The Government's principal contention is that the Secretary of Labor's power under 8 U.S.C. § 1182(a)(14), supra, is discretionary and therefore not subject to judicial review under the Administrative Procedure Act. Section 10 of that Act provides in relevant part:

"This chapter applies, according to the provisions thereof, except to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." (5 U.S.C. § 701(a)).

The applicable portion of the Immigration and Nationality Act, namely Section 1182(a)(14), does not mention the word "discretion" nor does it deal with reviewability of the Secretary's certification denials thereunder. The failure of the Immigration and Nationality Act to provide for judicial review of the Secretary's action does not bar review under the Administrative Procedure Act. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 157, 90 S.Ct. 827, 25 L.Ed.2d 184; Kingsbrook Jewish Center v. Richardson, 486 F.2d 663 (2d Cir. 1973). While the legislative history of Section 1182(a)(14) shows that Congress was interested in protecting American labor against an alien influx where the local economy could not absorb it, it does not show that Congress committed this agency action "to agency discretion" (5 U.S.C. § 701(a)), thereby cutting off judicial review.⁴ A part of the House Report is entitled "Discretionary authority," but it deals with other Sections of the statute and does not discuss Section 1182(a)(14).⁵

Applying Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136, we hold that the Secretary's action is subject to judicial review. There a unanimous Court held that the Secretary of Transportation's approval of the bifurcation of a Memphis public park by a six-lane interstate highway was reviewable under the Administrative Procedure Act. Here, as in that case, "there is no indication that Congress sought to prohibit judicial review and there is most certainly no `showing of "clear and convincing evidence" of a * * * legislative intent' to restrict access to judicial review." 401 U.S. at 410, 91 S.Ct. at 820 (ellipsis in original).

In the Overton Park case, the Court also held that the Secretary's decision did not fall within the exception for action "committed to agency discretion." Mr. Justice Marshall observed that it is "a very narrow exception" and applicable only "in those rare instances where `statutes are drawn in such broad terms that in a given case there is no law to apply.'" 401 U.S. at 410, 91 S.Ct. at 821.⁶ As in Overton Park, there is "law to apply," for aliens seeking to enter the United States to perform skilled or unskilled labor are not be be excluded where the Secretary has determined that there are not sufficient able, willing, qualified and available workers in the United States where the alien is destined to perform his labor and at the time he seeks admission, and that the employment of such aliens will not adversely affect the wages and working conditions of similarly employed workers in the United States. Proper application of this standard undoubtedly depends on the expertise of the Secretary of Labor. But that does not insulate his decision from judicial review. Certainly the subject matter is no more specialized than the engineering problems under review in Overton Park. Thus the exemption for action "committed to agency discretion" is inapplicable.

Applying Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184, and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192, the district court concluded that the aliens' employers had standing under Section 10(a) of the Administrative Procedure Act (5 U. S.C. § 702).⁷ We agree. Those cases accord standing under that Act where "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute * * * in question." 397 U.S. at 153, 90 S.Ct. at 830. It is clear that these plaintiffs have adequately alleged that they will be economically injured if not permitted to employ these aliens. Further, the legislative history makes clear that Section 1182(a)(14) was substituted for, and intended to fulfill the purpose of, the preexisting "contract labor clauses." House Report No. 1365, 82d Cong., 2d Sess., 1952 U.S.Code Cong. and Adm.News, pp. 1653, 1661-1662, 1705. Thus potential employers of aliens are within the zone of interests to be regulated. As Data Processing shows, where, as here, a statute is concerned, "the trend is toward enlargement of the class of people who may protest administrative action." 397 U.S. at 154, 90 S.Ct. at 830. Under this pair of Supreme Court cases, we conclude that the district court correctly upheld the standing of the plaintiffs.

On both the reviewability and standing issues, the Government relies on Braude v. Wirtz, 350 F.2d 702 (9th Cir. 1965), and Cobb v. Murrell, 386 F.2d 947 (5th Cir. 1967). Both cases were decided before Overton Park, Data Processing, and Barlow. We consider that their holdings are no longer tenable and will not be followed in the 5th and 9th Circuits in the future.

Standard and Procedures for Review

We believe that the standard of review set forth in Overton Park should also be applied to this case. The Secretary's determination does not have to meet the substantial evidence test. On the other hand, the Administrative Procedure Act requires the district court to engage in a substantial inquiry. Even though the Secretary's decision is entitled to a presumption of regularity, his action is not to be shielded "from a thorough, probing, in-depth review." 401 U.S. at 415, 91 S.Ct. at 823.

As decided in Overton Park, the district court is first required to find whether the Secretary acted within the scope of his authority. As mandated by Section 10(e)(2)(A) of the Administrative Procedure Act, supra, his determination must not be ...