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NEW YORK PATHOLOGICAL & X-RAY LABS., INC. v. INS

October 22, 1974

NEW YORK PATHOLOGICAL AND X-RAY LABORATORIES, INC., et al., Plaintiffs,
v.
IMMIGRATION AND NATURALIZATION SERVICE et al., Defendants


Kevin Thomas Duffy, District Judge.


The opinion of the court was delivered by: DUFFY

OPINION AND ORDER

KEVIN THOMAS DUFFY, District Judge.

 Plaintiffs, New York Pathological and X-Ray Laboratories, Inc. and its owners, have instituted suit against the Immigration and Naturalization Service and several of its offices and officers. Plaintiffs seek relief from action taken by the Immigration and Naturalization Service pursuant to 8 C.F.R. § 234.2(b) in designating certain civil surgeons and facilities employing civil surgeons to conduct the medical examinations required of aliens seeking permanent resident status under 8 U.S.C. § 1255. Plaintiff laboratory was not included on the list of facilities so designated. At hand is a motion by plaintiffs for a preliminary order enjoining defendants from continuing to refer aliens to the designated facilities or, in the alternative, to include plaintiff laboratory on the list of facilities so designated.

 Prior to August 1, 1973, the physical examination of an applying alien was performed by a medical officer of the United States Department of Health; the X-ray and serology tests were done by a laboratory of the alien's own choosing. Under the new procedure, instituted August 1, 1973, the physical examination is performed by civil surgeons selected under the authorization of 8 C.F.R. § 234.2 which provides in pertinent part:

 
"(a) General. When a medical examination is required of an alien who files an application for status as a permanent resident . . . it shall be made by a selected civil surgeon. . . .
 
"(b) Selection of civil surgeons. When a civil surgeon is to perform the examination, he shall be selected by the district director having jurisdiction over the area of the alien's residence. The district director shall select as many civil surgeons, including clinics employing qualified civil surgeons, as he determines to be necessary to serve the needs of the Service in a locality under his jurisdiction. Each civil surgeon selected shall be a licensed physician with no less than 4 years' professional experience. Officers of local health departments and medical societies may be consulted to obtain the names of competent surgeons and clinics willing to make the examinations.
 
. . . ."

 Plaintiffs allege that the performance of X-ray and serology tests for aliens constituted a significant portion of their business until the new procedure took effect. They challenge both the regulation authorizing the selection of doctors, and the manner in which the District Director of the New York District made the selection.

 In order to succeed on their motion for a preliminary injunction plaintiffs must establish "'either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.'" Gresham v. Chambers, 501 F.2d 687, 691 (2d Cir. 1974), quoting Sonesta Int'l Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973). See also Gulf & Western Indus., Inc. v. Great Atlantic & Pacific Tea Co., 476 F.2d 687 (2d Cir. 1973).

 The plaintiffs fail to satisfy the first criterion of both tests for a preliminary injunction. They have demonstrated neither probable success on the merits nor sufficiently serious questions going to the merits to make them a fair subject for litigation. The regulation complained of, 8 C.F.R. § 234.2(b), withstands plaintiffs' challenges that it was improperly enacted; suffers from vagueness; and violates plaintiffs' due process and equal protection rights.

 Plaintiffs argue that the regulation was not instituted in accordance with the requirements of the Administrative Procedure Act, 5 U.S.C. § 553, which provide for notice of a proposed rulemaking to those subject to the rule, an opportunity to be heard, and publication of the rule at least 30 days before the rule becomes effective. However, where a proposed rule relates to agency procedure, the formalities of a rulemaking are not required. 5 U.S.C. § 553(b)(3)(A). The regulation directing that aliens applying for permanent resident status be examined by selected civil surgeons rather than by medical officers of the Department of Health clearly relates to agency procedure and is thereby excused from the requirements of a formal rulemaking.

 Plaintiffs argue that where a regulation has a "substantial impact on a regulated industry" that a "semantic distinction" will not save a purportedly procedural rule which is, in reality, substantive. Pharmaceutical Mfrs. Ass'n v. Finch, 307 F. Supp. 858, 863 (D.Del.1970); see also Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 62 S. Ct. 1194, 86 L. Ed. 1563 (1941). However, the plaintiff laboratory cannot claim to be a regulated industry as were the drug manufacturers in the Pharmaceutical case or the broadcasters in the CBS case. Rather, the class regulated by 8 C.F.R. § 234.2(b) is composed of aliens applying for permanent residence. Their substantive rights have in no way been altered. The regulation merely provides a more efficient way for the government to process their applications. As was noted in Ranger v. Federal Communications Commission, 111 U.S.App.D.C. 44, 294 F.2d 240 (1961):

 
"Of course all procedural requirements may and do occasionally affect substantive rights, but this possibility does not make a procedural regulation a substantive one." 294 F.2d at 244.

 Clearly the regulation involved in the present case fell within the exception of rules relating to "agency procedure" so that an attack on its validity for ...


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