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LUSIN OZBIRMAN v. REGIONAL MANPOWER ADMR.

December 17, 1971

Lusin OZBIRMAN, Plaintiff,
v.
REGIONAL MANPOWER ADMINISTRATOR, UNITED STATES DEPARTMENT OF LABOR, Defendant. Francis Raymond WEBSON, Plaintiff, v. REGIONAL MANPOWER ADMINISTRATOR, UNITED STATES DEPARTMENT OF LABOR, Defendant


Tyler, District Judge.


The opinion of the court was delivered by: TYLER

TYLER, District Judge.

In these cases, plaintiffs Webson and Ozbirman, both of whom are aliens, submitted applications for alien employment certification pursuant to Section 212(a)(14) of the Immigration and Naturalization Act ("the Act"), 8 U.S.C. § 1182(a)(14). *fn1" The applications were denied by the Secretary of Labor, and subsequent administrative remedies were unsuccessfully exhausted by plaintiffs. Plaintiffs thereupon commenced these declaratory judgment actions and have now moved for summary judgment, seeking reversal of the Secretary of Labor's determinations.

 Since the facts differ in these two cases and because the applications were denied pursuant to different provisions of the Act, the two cases must be discussed separately.

 I

 Francis Webson, a native and citizen of Bermuda, was admitted to the United States on January 11, 1969 as a non-immigrant visitor for pleasure. On February 24, 1969, Webson submitted an application for change of status to that of non-immigrant student in order to attend a trade school as an auto mechanic. This request was approved by the Immigration and Naturalization Service ("INS") on January 9, 1970, and Webson was permitted to remain in the United States until January 8, 1971, at which time his course of instruction was to have been completed. He completed the auto mechanic's course on October 17, 1969 and six months later submitted an application for alien employment certification pursuant to Section 212(a)(14) of the Act. Webson sought certification as an automobile mechanic with Yankee Service Corporation, Bronx, New York. Pursuant to the current wage information derived from the Bureau of Labor Statistics Wage Survey for the Metropolitan New York area, the New York State Department of Labor determined that the wage offer of $3.25 per hour did not meet the "prevailing wage" of $4.05 per hour of an automobile mechanic. This action was taken in accordance with the regulations promulgated under Section 212(a)(14) of the Act, 29 CFR 60.6(a), directing the manner in which the prevailing wage should be determined. The New York State Department of Labor also determined that auto mechanics constituted a shortage occupation, i.e., there were not "sufficient workers in the United States who are able, willing, qualified, and available" to perform the job. See 8 U.S.C. § 1182(a)(14)(A). By letter dated April 30, 1970, counsel for Webson again requested certification, stating that the wage offered by the employer meets the union wage negotiated by Yankee Service Corporation with Local 3036, New York City Taxi Drivers Union, for automobile mechanics in the taxi industry. This request for labor certification was denied by the United States Department of Labor, Manpower Administration, solely because the wage offer was below the "prevailing wage" for the occupation in the intended area of employment, i.e., there would be an adverse effect on wages of workers in the United States. See 8 U.S.C. § 1182(a)(14)(B). Thereafter, as noted above, plaintiff unsuccessfully exhausted his administrative remedies. Webson is presently residing in the United States illegally, as his non-immigrant visa was valid only until January 8, 1971.

 This court, of course, must answer two threshold questions before proceeding to the merits of this controversy: (1) whether the determination of the Secretary of Labor with respect to plaintiff's application is subject to judicial review, and (2) if so, the scope of review.

 Under Section 212(a)(14) of the Act, no alien seeking to enter the United States for the purpose of performing skilled or unskilled labor can be issued a visa permitting entry into the United States unless the Secretary of Labor has determined that: (1) there are not sufficient workers in the United States to fill the position, and (2) the employment of aliens will not adversely affect wages and working conditions of workers in the United States similarly employed.

 The following comment appeared in the reports of both the Senate and House Committees while the amended Act was being considered by Congress:

 
"The Department of Labor should have no difficulty in adapting to this new procedure [labor certification] inasmuch as the Department [of Labor] through its Bureau of Employment Services agencies, presently determines availability of domestic workers and the standard of working conditions. There is no apparent need to increase facilities." House Report No. 745 (89th Cong., 1st Session) at page 14; Senate Report No. 748 (89th Cong., 1st Session) U.S. Code Cong. and Admin. News, 1965, at page 3334.

 The above comment and the labor certification procedure itself indicate that each determination must be based upon facts and figures which are within the expertise of the Department of Labor. Each determination requires knowledge of the pertinent job and region, applicable pay scales, and application of these facts to each alien applicant. Because of these variables in the labor certification procedure, it follows that the ultimate decision as to whether there is an "adverse effect" or "sufficient workers" is committed to the discretion of the Secretary of Labor. See Cobb v. Murrell, 386 F.2d 947 (5th Cir., 1967).

 The Administrative Procedure Act, 5 U.S.C. §§ 701-706 provides in part:

 
"Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion --
 
(a) Right of Review -- Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute shall be entitled to judicial review thereof.
 
(b) Form and Venue of Action -- The form of proceeding for judicial review shall be any special statutory proceeding relevant to the subject matter in any court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court ...

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