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July 13, 1976

W. J. USERY, JR., Secretary of Labor

The opinion of the court was delivered by: DITTER


 This case is before me on defendant's motion to dismiss or in the alternative, for summary judgment. The issues raised are whether or not this court has jurisdiction to review a decision of the Secretary of Labor which denied a labor certification to an alien and, if so, whether the Secretary acted arbitrarily or capriciously. For the reasons stated herein, I find that this court does have jurisdiction to review the decision, that the Secretary abused the discretion vested in him, and that the matter should be remanded to the Secretary for further consideration.

 Plaintiff, Alicja Jadeszko, is a twenty-three year old citizen and native of Poland. She entered this country under a temporary visitor's visa on January 3, 1972. Since February, 1975, she has been employed as a live-in maid for Mr. and Mrs. Jerome Matez, who have three children, and reside in Jenkintown, Pennsylvania, a Philadelphia suburb. On March 11, 1975, the Department of Labor received plaintiff's application for a labor certification as a "live-in domestic." *fn1" This application was filed on plaintiff's behalf by her employers, who stated they had checked with private agencies and the State Employment Service but could not find a qualified United States worker. A description of plaintiff's job showed that it involved a 40-hour work week to be performed between 8:00 and 11:20 A.M. and 4:00 and 7:20 P.M., six days a week, for which plaintiff is paid $2.50 per hour. Plaintiff's duties include "general household cleaning such as dusting, vacuuming, washing clothes, cooking and serving meals, and taking care of the children." The certifying officer *fn2" determined that there was no showing that Mr. and Mrs. Matez needed a live-in maid, decided the job in their home could be filled by a qualified applicant willing and able to do day's work on a live-out basis, found there were 366 such workers registered for employment assistance in the Philadelphia area, and concluded the employment of plaintiff would have an adverse effect on wages or working conditions of U.S. workers. *fn3" When this decision was affirmed on behalf of the Secretary of Labor by his designated administrative officer, plaintiff filed her complaint seeking a declaratory judgment that the Secretary's action was invalid and that the application should be approved.

 The court's initial finding must be whether it has jurisdiction to review a determination relegated to the Secretary of Labor. The defendant urges that it does not, asserting two grounds: that there is no proper statutory basis for jurisdiction alleged *fn4" and that there is no act of Congress waiving sovereign immunity to suits challenging the denial of alien certification. Defendant admits, however, that a number of courts have held to the contrary. For the reasons set forth in Rusk v. Cort, 369 U.S. 367, 379-80, 82 S. Ct. 787, 794, 7 L. Ed. 2d 809 (1962), Davis v. Romney, 490 F.2d 1360, 1364-65 (3d Cir. 1974), Pesikoff v. Secretary of Labor, 163 U.S. App. D.C. 197, 501 F.2d 757, 765-66, cert. denied 419 U.S. 1038, 95 S. Ct. 525, 42 L. Ed. 2d 315 (1974), and Golabek v. Regional Manpower Administration, 329 F. Supp. 892, 894 (E.D. Pa. 1971), I conclude that this court does have jurisdiction to review the Secretary's findings.

 Once a court assumes jurisdiction, its scope of review is limited to determining whether the Secretary's denial of the alien employment certification was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2) (A); Seo v. U.S. Department of Labor, 523 F.2d 10, 12 (9th Cir. 1975); Golabeck, supra, 329 F. Supp. at 894. Here, a decision as to the presence or absence of an abuse of discretion in the Secretary's decision involves a determination of all the relevant factors and whether there has been a clear error of judgment. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 823-24, 28 L. Ed. 2d 136 (1971). Nevertheless, the ultimate standard of review is a narrow one and a district court may not substitute its judgment for that of the agency.

 Section 212(a)(14) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(14), creates a presumption that aliens should not be permitted to enter the United States for the purpose of performing labor because of the possible harmful impact which they may have on American workers. The statute specifically bars such aliens unless the Secretary of Labor concludes there are not sufficient workers in the United States who are able, willing, qualified, and available for the job in question and that the employment of the alien will not adversely affect the wages and working conditions of United States workers. Of course this requires the Secretary to ascertain the status of the labor market for the specific occupation at the time and at the place in question. Complexities obviously may abound, but here the Secretary streamlined the task with which he was confronted by the simple expedient of declaring that Mr. and Mrs. Matez did not need domestic help during the hours they thought they did and that they could get along just as well with a day worker as they could with a live-in maid. *fn5"

 This is Washingtonian whimsy.

 While I recognize that the Secretary has been given wide discretionary power, Congress has not given him the authority to say that one who wants to employ a baker in the morning must be content with a candle stick maker who is willing to work in the afternoon. Silva v. Secretary of Labor, 518 F.2d 301, 308 (1st Cir. 1975), held that the Secretary had no right to treat as irrelevant the job requirements stated by an employer *fn6" and that in view of the "marked advantages and convenience" of a live-in domestic to an employer, it "borders on the absurd" to say that a day worker is just as satisfactory. I do not know why Mr. and Mrs. Matez want a domestic who will be available at the breakfast and dinner hours but will not be needed during the noonday but all sorts of reasons suggest themselves. I do not know precisely why live-in help is so much more suited to their needs than would a day worker be that they are willing to provide meals, a private bedroom, and adequate bathroom and toilet facilities, but this is what the record shows they have undertaken to do. They should be given a chance to establish their requirements -- not just told they do not exist. *fn7" Regretfully, this was not the only error the Secretary made.

 Having decided that a day worker would be sufficient for the needs of Mr. and Mrs. Matez, the Secretary then found "Local employment service offices in the Philadelphia Metropolitan Statistical Area have 366 similarly qualified applicants registered for employment assistance to perform the duties described on a live-out basis." This led to the conclusion that "there were similarly qualified maids available for the position" and thus that Miss Jadeszko could not be admitted. *fn8" If there are 366 able, willing, and qualified workers to fill the job at the Matez home, the Secretary is obviously correct in refusing to admit an alien for this position. However, the number, 366, is fantasy not fact. According to defendant's brief, the figures come from the following job banks: Coatesville 3 maid general Hatboro 1 day worker, 3 maid general Lansdale 1 day worker, 3 maid general Levittown 19 day workers, 3 maid general Philadelphia 263 day workers, 36 maid general Pottstown 2 maid general


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