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HSU-YANG HSING v. USERY

August 23, 1976

Hsu-Yang HSING, Plaintiff,
v.
W. J. USERY, Jr., Secretary of Labor, United States Department of Labor, Defendant



The opinion of the court was delivered by: MCCUNE

 Petitioner seeks judicial review under the Administrative Procedure Act (APA), 5 U.S.C.A. §§ 701-706 of a final administrative agency action by the Manpower Administration of the U.S. Department of Labor refusing to grant him an employment certification as required by 8 U.S.C.A. §§ 1151, 1153, and 1182. Petitioner's request for reconsideration of the administrative decision has also been denied.

 Defendant has moved to dismiss plaintiff's complaint or in the alternative for Summary Judgment contending that (1) plaintiff's complaint based solely upon the APA affords no proper statutory basis for jurisdiction of this court in the subject matter of this action, (2) plaintiff's action against the Secretary of Labor, U.S. Department of Labor, is barred by the doctrine of Sovereign Immunity, and (3) the Assistant Regional Director for Employment and Training (ARDET) of the Manpower Administration, U.S. Department of Labor, did not abuse his discretion in denying labor certification to the plaintiff.

 Statement of Facts

 Plaintiff is a non-immigrant alien, a citizen of the Republic of China, and currently resides in East Pittsburgh, Pennsylvania. Prior to entering the United States, plaintiff attended the National Taiwan University, Taipei, Taiwan, from September, 1964, until June, 1968, where he received a Bachelor of Science Degree in mechanical engineering. He thereafter entered the United States under an F-1 (student) visa and attended the University of Mississippi from January, 1972, until June, 1972, and the University of Texas at Austin, Texas, from September, 1972, until May, 1974, where he obtained a Master of Science degree in mechanical engineering. *fn1"

 On February 27, 1974, plaintiff began working as a mechanical engineer for the Westinghouse Electric Corporation, East Pittsburgh, Pennsylvania. His duties as a mechanical engineer were described as follows: *fn2"

 
"Conduct theoretical analysis and experimental work in the mechanical engineering field to improve the performance of large rotating machines -- large generators, large A.C. & D.C. motors, etc."

 On October 7, 1974, Westinghouse filed Form MA7-50B (Job Offer for Alien Employment) with the Department of Immigration and Naturalization for the plaintiff. No action was taken upon this filing, and plaintiff, on February 18, 1975, filed Form MA7-50A (Application for Alien Employment Certification). *fn3" These applications were forwarded to the U.S. Department of Labor on June 4, 1975. On July 2, 1975, the certifying officer of the U.S. Department of Labor denied the request for certification stating that (as of March 31, 1975), "State employment agencies in Region III have 165 more qualified applicants than openings for mechanical engineers," *fn4" and, therefore, ". . . qualified [American] workers were available to perform the job duties as described on the application." *fn5"

 Pursuant to 29 C.F.R. § 60.4(b), Westinghouse appealed this decision on July 22, 1975. *fn6" On July 30, 1975, the denial of plaintiff's certification was affirmed by the Assistant Regional Director for Manpower, U.S. Department of Labor, *fn7" who stated, "There were qualified resident workers registered with State employment agencies in Region III for the position of mechanical engineer."

 Thereafter, further requests for reconsideration of the denial of certification were made, and were accordingly denied on the basis that the review decision of July 30, 1975, was final and that there were no provisions for further administrative review. *fn8"

 On October 30, 1975, Westinghouse filed an amended Job Offer for Alien Employment. *fn9" However, since it was filed subsequent to the final administrative decision, it was not considered by the ARDET.

 In response to the administrative decisions and a possible deportation action, *fn10" plaintiff brought suit on November 25, 1975, alleging as his sole jurisdictional basis the Administrative Procedure Act. However, pursuant to a stipulation entered into between the parties, and approved by this court on December 29, 1975, plaintiff's case was remanded to the Regional Manpower Administration of the U.S. Department of Labor for further reconsideration for a 90 day period.

 Further research by the ARDET revealed that as of January 29, 1976, there were 372 mechanical engineers registered for employment assistance in Region III, 289 possessing a Bachelor of Science Degree in mechanical engineering, 83 possessing a Master of Science Degree in mechanical engineering and 25 having a work background in power distribution on large generators. In response to a request from the ARDET that information be supplied regarding Westinghouse's recruitment efforts to obtain an United States worker to fill the position occupied by the plaintiff, Westinghouse stated in effect that applicants had been "generally" interviewed for plaintiff's engineering position but that ".. none were found having the qualifications already possessed by [plaintiff]." Further, Westinghouse expressed the belief that no matter how many applicants were to be considered, a replacement could not be obtained without a serious loss in effectiveness to plaintiff's development group and without considerable expense in training such other individual. *fn11"

 As a result, on March 30, 1976, the ARDET once again denied labor certification to plaintiff for the reason that there were sufficient resident workers available to ...


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