Balaji Doraiswamy, Appellant, v. Secretary of Labor.honeywell Information Systems, Inc., et al., Appellants, v. the Secretary of Labor, 555 F.2d 832 (D.C. Cir. 1976)

Section 212(a) (14) of the Immigration and Nationality Act bars aliens from entering the United States to perform labor unless the Secretary of Labor certifies that qualified American workers are not available therefor, and that wages and working conditions of similarly employed American workers will not be adversely affected.¹  These consolidated appeals are from summary judgments of the District Court upholding the Secretary's denial of certifications²  separately sought by two aliens.³  Upon examination of the administrative records⁴  in light of the statute as we have heretofore interpreted it,⁵  we affirm.

* Appellant Balaji Doraiswamy, a native and citizen of India, entered the United States as a student in 1970 and over the next two years earned the degree of master of business administration.⁶  Although his visa did not permit employment in the United States, he was hired in 1972 as a junior contract auditor by the National Railroad Passenger Corporation (AMTRAK) in Washington, D.C. A year later, Doraiswamy applied for a labor certification pursuant to Section 212(a) (14). His application was supported by AMTRAK's offer of a post as traveling contract auditor,⁷  the minimum requirement for which was stated to be a bachelor of science degree in accounting or finance.⁸  The application was denied on the ground that "(a)vailable job market information will not warrant a certification of unavailability of workers in the U.S."⁹ 

AMTRAK then amended the job requirements to include a year's experience and, in Doraiswamy's behalf, sought reconsideration. The request was accompanied by copies of newspaper advertisements of the position in six cities, and emphasized the difficulty posed by the need to travel.¹⁰  The earlier decision to deny the application was affirmed with the explanation that

the . . . application was (previously) disapproved . . . because resident workers were available for employment as auditors in the local area. We must conclude, after reviewing your correspondence that these workers (in excess of 40 registered with the Division of Placement of the D.C. Manpower Administration)¹¹  remain available for the position offered. A review of the application forms on file in this occupation with the Employment Service reveals that the vast majority of these individuals forsees (sic) the necessary qualifications to perform the job offered. There is no indication that these workers have placed travel restrictions on their employment. In the absence of such restrictions we must assume that these registrants have no objection to travel on the job and hence are willing and available, as well as qualified, for the employment opportunity described in the application.¹² 

With that, Doraiswamy came to the District Court for judicial review. His complaint alleged that AMTRAK was unable to recruit qualified contract auditors amendable to extensive travel, and that the contrary administrative conclusion rested on inadequate investigation. The Secretary moved for summary judgment on the administrative record, and Doraiswamy sought unsuccessfully to take the depositions of two administrative officials and to inspect and copy certain documents.¹³ 

The District Court awarded summary judgment in favor of the Secretary.¹⁴  The court referred to the general availability of contract auditors:

When the D.C. Manpower Administration received Doraiswamy's application and supporting data, it consulted its files and determined that it, the Manpower Administration, had files on over 100 persons in the D.C. area who had, at that time, the requisite qualifications and willingness for AMTRAK employment.¹⁵ 

The court also addressed the travel factor:

When the Manpower Administration reviewing officer reconsidered the certification application as amended, he determined that more than 40 persons were available for this position. He specifically found, with respect to the travel factor asserted by (Doraiswamy's) counsel, that there was no indication from the file that any of these 40 persons had placed any travel restrictions on his availability for employment.¹⁶ 

Declaring "that 'abuse of discretion may be found only if there is no evidence to support the decision' "¹⁷  and that "the 'burden should be placed on the alien or his putative employer to prove that it is not possible for the employer to find a qualified American worker,' "¹⁸  the court concluded that Doraiswamy "has failed to submit any data to support his conclusions. He has not carried his burden of proof."¹⁹ 

II

Appellant Kenneth What Poont Lao is a native of Burma and a citizen of the Republic of China. Having entered the United States as a student in 1967, he earned the degrees of bachelor of arts in mathematics in 1969 and master of science in the technology of management in 1971. Soon thereafter, in disregard of his immigration status, he became a systems analyst for appellee Honeywell Information Systems, Inc., a manufacturer-marketer of computers and related products and services. Somewhat later, Lao submitted an application for a Section 212(a) (14) certification, and bolstered it with an offer by Honeywell of a job as systems analyst in the Washington metropolitan area. The application was denied on the ground that qualified Americans were available for the position, and on reconsideration this disposition was affirmed.²⁰ 

Shortly thereafter, Lao filed a second application for a labor certification, together with a similar job offer from Honeywell. Stated as minimum requirements for the position were "(t)raining in one or more (computer) programming languages and a reasonable degree of proficiency,"²¹  and "(o)ne year of programming experience."²²  Honeywell also specified as "(n)ormal (q)ualifications" that the applicant must possess a "(c)ollege degree or equivalent plus 1 year of programming experience and specific knowledge in at least one computer programming method."²³  This application met the same fate as the first, for the same reason.

Honeywell sought reconsideration, stating that the job offered Lao necessitated a minimum of a year's experience with its 6000 series computer systems. Honeywell asserted that Lao had acquired that experience during his employment, and that it had not been able to find anyone else who was experience-qualified. The denial of this application was affirmed:

The Professional Career Information Branch of the D.C. Manpower Administration has numerous qualified applicants listed in their files who are available for employment, and this is just one of the many recruitment sources available to employers in the Washington Metropolitan Area. These workers possess the basic education, training and experience in systems analysis normally required for proficiency in this occupation. In view of the available manpower to fill this position, the specific requirement of experience on 6000 series computers must be regarded as training which is normally required (sic) on the job.²⁴ 

Five months later Lao, again with Honeywell's support, submitted his third and final application for certification. Honeywell designated as minimum job requirements a bachelor's degree in mathematics, "(t)raining in one or more programming languages and a reasonable degree of proficiency,"²⁵  and "(o)ne year of programming experience."²⁶  Honeywell professed its willingness to hire an available domestic worker, and stated that the position had been advertised in Washington newspapers without satisfactory results. This application, like its forerunners, was denied for the reason consistently advanced earlier. An intra-agency memorandum noted that despite Honeywell's alleged difficulty in recruiting systems analysts with 6000 series computer systems experience, Lao did not have that experience when originally hired, and was no better qualified than any of numerous systems analysts available.²⁷ 

As on previous occasions, Honeywell submitted a request for reconsideration based "on the fact that (Lao) has gained considerable experience over the past year while working on our Honeywell 6000 computer systems and the fact that there is a decided lack of available qualified 6000 Systems Analysts."²⁸  Honeywell represented that it had placed recruitment advertisements in newspapers and had listed openings with federal, state and private employment services without satisfying its need for analysts with Honeywell 6000 computer systems experience. The application for certification was again rejected on the ground that American workers were available for the position:

The . . . application was disapproved . . . because there were resident workers available in the occupation of systems analyst. This occupation is included among those classified as Professions, Sciences or Arts. In making a determination, the requirements indicated on the job offer were not considered. The initial determination was based only on the availability of and adverse effect on resident workers in the occupation. . . .

A careful review of the material submitted indicates that the alien has received only 19 days of formal training other than on the job experience gained with your firm. A more recent check . . . with the Professional Career Information Branch of the D.C. Manpower Administration revealed there are in excess of 150 persons qualified in computer systems available and in fact seeking employment.²⁹ 

An action, with Honeywell and Lao as plaintiffs, was then instituted in the District Court for review of the action taken on the third application. The complaint reiterated the claim that available systems analysts lacked the ability and experience to perform the duties of the position offered Lao. The Secretary moved for summary judgment, and the plaintiffs sought and obtained limited discovery.³⁰  The court, restricting its consideration to the administrative record, granted the Secretary's motion.³¹  In the court's view,

(i)t is not an abuse of the Secretary's discretion to ignore the job specifications offered by the prospective employer, if through his expertise in the labor market, he deems those requirements to be inappropriate to the job to be performed. Thus, the Secretary's decision that experience on the Honeywell 6000 series computer system was unnecessary to an entry level computer position is affirmed.³² 

The court was further of the view that

(t)he legislative history of the Act clearly demonstrates that the Secretary need only survey the labor market, and if a pool of potential workers is available to perform the job, then the onus shifts to the alien or his prospective employer to prove that no qualified American workers are available. Absent such proof by the alien, the Secretary has no choice but to deny a labor certificate.³³ 

The court concluded:

Therefore, the Secretary's finding in this case that a pool of computer workers (was) available and absent any proof by the plaintiff (sic) to the contrary, that finding is affirmed. Plaintiff's (sic) contention that the Secretary must provide resumes of job applicants in order for plaintiff (sic) to test the Secretary's conclusions is without merit . . ..³⁴ 

III

We first consider appellants' common contention that the District Court erroneously denied them the opportunity of proving the unavailability of qualified American workers to fill the position openings in question. As we have stated, appellants endeavored unsuccessfully to achieve that end through discovery from the Secretary.³⁵  In the one case, however, the District Court limited the effort at the threshold,³⁶  in the other it deemed the effort to be "without merit,³⁷  and in neither did it venture beyond the administrative record.³⁸  We conclude that in each instance the District Court was eminently correct in restricting its review to the record as made before the Secretary.

As the Supreme Court has observed, "in cases where Congress has simply provided for review, without setting forth the standards to be used or the procedures to be followed, (the) Court has held that consideration is to be confined to the administrative record and that no de novo proceeding may be held."³⁹  This circumscription, which the Court has consistently honored in other cases,⁴⁰  stems from well ingrained characteristics of the administrative process. The administrative function is statutorily committed to the agency, not the judiciary. A reviewing court is not to supplant the agency on the administrative aspects of the litigation.⁴¹  Rather, the judicial function is fundamentally and exclusively an inquiry into the legality and reasonableness of the agency's action,⁴²  matters to be determined solely on the basis upon which the action was administratively projected. "The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based,"⁴³  and the reviewing court cannot "supply an alternative, unstated ground to support an agency's decision if that ground is one that 'the agency alone is authorized to make.' "⁴⁴  To permit an administrative determination "to be attacked or supported in court by new evidence," the Supreme Court has admonished, "would substitute the court the administrative tribunal . . .."⁴⁵ 

The rule confining judicial review of agency action to the administrative record applies not only to proceedings involving formal evidentiary-type hearings but also to informal agency adjudication on a nonevidentiary record. In Citizens to Preserve Overton Park v. Volpe,⁴⁶  the Secretary of Transportation rendered a decision following a statutorily-required public hearing designed to afford community imput on the matters to be determined⁴⁷  a hearing "nonevidentiary, quasi-legislative in nature,"⁴⁸  necessitating no formal findings of fact.⁴⁹  On review in a district court, the parties introduced opposing affidavits addressing the validity of the decision, and the affidavits served as the foundation for judicial scrutiny.⁵⁰  The Supreme Court held that de novo consideration was not authorized,⁵¹  and that "(t)hese affidavits were merely 'post hoc rationalizations'⁵²  . . . which have traditionally been found to be an inadequate basis for review⁵³  . . .. (T)hey clearly do not constitute the 'whole record' compiled by the agency: the basis for review required by § 706 of the (Administrative Procedure Act)."⁵⁴  Review is rather "to be based," the Court said, "on the full administrative record that was before the Secretary at the time he made his decision."⁵⁵ 

Two years later, the Court reinforced the doctrine that judicial review of informal agency adjudication is to be conducted solely on the administrative record. In Camp v. Pitts,⁵⁶  the Comptroller of the Currency, proceeding under a statute which did not require a formal hearing,⁵⁷  refused to issue a certificate authorizing the organization of a new bank. That action came under review in a district court which, on examination of the record before the Comptroller,⁵⁸  held that de novo review was not warranted⁵⁹  and, viewing only the administrative record, sustained the Comptroller's ruling.⁶⁰  On intermediate appeal,⁶¹  however, it was felt that the basis of the Comptroller's decision was too obscure to enable adequate review and a remand was ordered "for a trial de novo before the District Court,"⁶²  at which evidence pro and con would be introduced, and after which the court would determine "by a preponderance of evidence (whether) the Comptroller's ruling is capricious or an abuse of discretion."⁶³  This, the Supreme Court held, was error.⁶⁴  "The appropriate standard of review," the Court declared, "was . . . whether the Comptroller's adjudication was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' "⁶⁵  and "(i)n applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court."⁶⁶ 

In the cases at bar, however, it is asserted that without discovery and an opportunity to demonstrate in the District Court the unavailability of American workers qualified for the positions sought to be filled, appellants faced a dilemma from which escape was a near impossibility. Attention is called to the District Court's view that it was their burden at the administrative level to make that showing,⁶⁷  and we are reminded that their recruitment efforts through newspaper advertisements and employment services did not satisfy the Secretary.⁶⁸  Beyond that, Honeywell tells us that it was unable to interview those whose resumes underlay the Secretary's conclusion on availability in order to test that conclusion because the Secretary would not release their names.⁶⁹  When the discovery efforts in the District Court came to naught, appellants complain, their last chance to carry their burden was taken away. We cannot agree that the discovery sought was the sole viable alternative left to appellants. It is abundantly clear that they could have amply tested the local labor market simply by filing job orders with the Employment Service of the Manpower Administration and interviewing applicants referred to them.⁷⁰  Neither prospective employer, however, sought to avail itself of this opportunity prior to completion of the administrative processes on the applications for certification.⁷¹ 

Appellants also point to the fact that the Supreme Court has left the door ajar for a call upon an administrative agency to more adequately explain, through affidavits or testimony in the reviewing court, the reasons for its decision.⁷²  Certainly, as the Court has held, there is occasion to do so when "the bare record (does) not disclose the factors that were considered or the Secretary's construction of the evidence, (and) it (is) necessary for the District Court to require some explanation in order to determine if the Secretary acted within the scope of his authority and if the Secretary's action was justifiable under the applicable standard."⁷³  But in the cases before us, appellants challenge the correctness of the Secretary's decisions rather than the fullness of the reasons he gave,⁷⁴  and surely there is no such "failure to explain administrative action as to frustrate effective judicial review."⁷⁵  As the Court has made plain, there is no occasion for a judicial probe beyond the confines of an administrative record affording enough "contemporaneous explanation of the administrative decision" to "indicate() the determinative reason for the final action taken."⁷⁶  That is the situation we encounter here.

IV

We next reach Honeywell's contention that the final step in administrative processing of Lao's applications was taken by a delegate of the Secretary⁷⁷  who was disqualified from acting.⁷⁸  As we have said, Honeywell submitted three separate applications on Lao's behalf for certification pursuant to Section 212(a) (14).⁷⁹  The certifying officer who initially passed on the first two applications was Lorenzo M. White, whose denials of those applications were reconsidered and sustained by Fred Z. Hetzel as reviewing officer.⁸⁰  The certifying officer who similarly denied the third application was Flora Richardson, and White, who in the meantime had been promoted, was the reviewing officer who reconsidered that application and upheld Ms. Richardson's ruling. Honeywell's argument is that White's role as reviewing officer on the third application violated an administrative regulation providing that an official "who shall not have participated in the initial determination() shall carry out the review,"⁸¹  and as well was a deprivation of due process of law.

Without a doubt, "an administrative agency is bound not only by the precepts of its governing statute but also by those incorporated into its own regulations . . . ."⁸²  And just as indubitably, a litigant's entitlement to a tribunal graced by an unbiased adjudicator⁸³  obtains in administrative proceedings.⁸⁴  Here we perceive no impingement upon these principles, however. The obvious purpose of the regulation is to bar an officer from reviewing his own decision, and the certifying and reviewing functions in regard to Lao's third application were performed by different officials. Each of the three applications inaugurated an independent proceeding; each review was directed exclusively toward the certifying officer's initial decision on a particular application. When White served as reviewing officer on the third application, the issue concerned Ms. Richardson's denial of that application and not White's rulings on the two prior applications.

We are unable to meaningfully distinguish this situation from that which occasionally arises under a statute forbidding federal judges from participating in appeals from their own decisions.⁸⁵  Speaking to the scope of an earlier but substantially similar version of the current statutory prohibition,⁸⁶  the Supreme Court has declared that

(t)he terms of the statute . . . are both direct and comprehensive. Its manifest purpose is to require that the Circuit Court of Appeals be composed in every hearing of judges none of whom will be in the attitude of passing upon the propriety, scope or effect of any ruling of his own made in the progress of the cause in the court of first instance, and to this end the disqualification is made to arise, not only when the judge has tried or heard the whole cause in the court below, but also when he had tried or heard any question therein which it is the duty of the Circuit Court of Appeals to consider and pass upon .... (T)he sole criterion under the statute is, does the case in the Circuit Court of Appeals involve a question which the judge has tried or heard in the course of the proceedings in the court below?⁸⁷ 

Accordingly, the Court has held that a judge is not disqualified from sitting as a member of the court of appeals reviewing a conviction involving no question previously considered by him in the district court, although he had overruled a motion to quash the indictment made by an ultimately untried codefendant of the appellant, and in another case, involving the same charge but not the appellant, had overruled a like motion and presided at the trial and sentencing of the defendant therein.⁸⁸ 

Closer to the situation at hand is that which the Third Circuit has had occasion to address. A circuit judge was designated to preside at a criminal trial, at which the defendants were convicted but on appeal the convictions were reversed. The judge did not take part in the retrial but he did sit as a member of the court which heard and decided an appeal from convictions on the retrial. Since no action of the judge respecting the first trial was involved in the second appeal, it was held that his participation in the resolution of that appeal was appropriate.⁸⁹  Somewhat similarly, the Ninth Circuit has held that a district judge who dismissed one indictment against an accused did not disqualify him from sitting as a member of the court of appeals reviewing the accused's conviction on another indictment.⁹⁰  Likewise, the Third Circuit has also held that a circuit judge who, while sitting on special assignment in a district court, had granted a motion for enlargement of a defendant's time to plead, was not disqualified from participating in the plaintiff's appeal from an order refusing a motion for a preliminary injunction in the same case, since no question as to the extension of time was involved on the appeal.⁹¹ 

These precedents, we think, serve well to guide the decision now to be made. They teach that the statute works a disqualification of an appellate judge only when an appeal involves a question decided by the judge at the trial level. We think the Secretary's regulation, which seeks for administrators what the statute exacts for federal judges, should be given the same construction. While the three applications on Lao's behalf sought the same type of certification and the supporting arguments echoed a familiar theme, the central question on each application was the sufficiency of Honeywell's showing of the unavailability of American workers for the post that Lao wished to permanently fill. That demonstration varied factually, though unsuccessfully, as on each application Honeywell strove to improve it. White, as reviewing officer on the third application, thus faced no action which he took on either of the two prior applications. We hold that the regulation was not violated.

V

Appellants' procedural objections thus resolved, we now direct our attention to their claims on the merits. The central theme of their arguments is that certifications to the effect that there was an insufficiency of American workers "able, willing, qualified, and available,"⁹²  in the words of the Act, to fill their position openings were legally required unless the Secretary mounted and succeeded in an affirmative showing to the contrary. This responsibility, so the contention runs, cannot be discharged merely by ascertaining that there are applicants for work of the same type and assuming that the applicants meet each of the four statutory criteria. This position mistakes the thrust of the statute, as interpreted in our recent Pesikoff⁹³  and Acupuncture Center⁹⁴  decisions, which is that the burden of demonstration rests not on the Secretary but on the applicant.

In Acupuncture Center, we summarized the governing principles:

Section 212(a) (14) . . . establishes a presumption against admission of aliens for the purpose of performing labor.⁹⁵  This presumption is triggered by the Secretary's consultation with general labor market data suggesting the availability of workers to perform the job which the alien seeks.⁹⁶  The burden is then cast on the alien or his would-be employer to show that no qualified domestic worker can be found.⁹⁷  A court may overturn the Secretary's determination only if it can be said that he abused his discretion in concluding as he did.⁹⁸ 

After careful analysis and study of the administrative records, aided by post-argument memoranda from the parties,⁹⁹  we find that the present applicants for certification have not survived these requirements.

Upon receipt, in turn, of the Doraiswamy and Lao applications for certification, the Manpower Administration's job-applicant files were examined, and resultantly it was concluded that the American labor supply for the alien-occupied positions was plentiful.¹⁰⁰  On reconsideration of the certifying officer's decision so holding, that conclusion in each instance was affirmed.¹⁰¹  For Doraiswamy's job, more than 40 applicants for auditor posts were registered;¹⁰²  for Lao's, there were more than 100 registrants possessing entry-level qualifications as systems analysts.¹⁰³  Surely these data "suggest(ed) the availability of workers to perform the job(s) which the alien(s) seek() ."¹⁰⁴ 

There was, too, specific administrative treatment of the special job requirements which the employers had set. The response to AMTRAK's need for traveling auditors was that "(t)here is no indication that (the applicants on file) have placed travel restrictions on their employment. In the absence of such restrictions we must assume that these registrants have no objection to travel on the job and hence are willing and available, as well as qualified, for the employment opportunity described in the application" for certification.¹⁰⁵  Honeywell's insistence upon experience-qualified applicants was confronted with the undisputed circumstance that Lao had "received only 19 days of formal training other than on the job experience gained with" Honeywell,¹⁰⁶  and with the administrative view "that familiarity or experience with an individual employer's specific type of equipment can only be acquired on the job and that on-the-job training on company equipment is normal for the occupation."¹⁰⁷  As we have heretofore held, "(i)i is well within the Secretary's discretion to ignore employer specifications which he deems, in accordance with his labor market expertise, to be irrelevant to the basic job which the employer desires performed";¹⁰⁸  his obligation rather, "is simply to locate 'a class of workers who, while possibly not meeting the prospective employer's personalized job description, do provide the employer with the potential for getting the job accomplished.' "¹⁰⁹  That responsibility was fully discharged here.

Thus the "presumption against admission of aliens for the purpose of performing labor"¹¹⁰  went into operation at this point, and placed on the applicants for certification the burden of demonstrating "that it (was) not possible for the employer to find a qualified American worker."¹¹¹  The applications were denied because appellants' efforts to rebut the presumption were administratively unacceptable.¹¹²  AMTRAK's reference to recruitment advertisements that it had placed in several newspapers fades to relative insignificance in light of the fact that only one of the advertisements was published in Washington. It was the local labor market that bore primary importance, for the administrative decision had to be made, as it was, on the basis of American-worker availability "at the place to which the alien is destined to perform . . . labor. . . ."¹¹³  Honeywell's recruitment activities suffer similarly from their occurrence largely in localities far removed from the Washington metropolitan area, and additionally from their call for extensive experience¹¹⁴  and their offer of a salary disproportionately low in comparison with the experience demanded.¹¹⁵  Even more crucially, neither AMTRAK nor Honeywell saw fit, prior to the administrative decision, to utilize the Manpower Administration's job-applicant referral service¹¹⁶  as a means of obtaining the domestic talent they professed to welcome.¹¹⁷  An employer may not circumvent the strictures of Section 212(a) (14) by the simple expedient of tailoring job requirements to fit non-unique qualifications of a prospective alien employee.¹¹⁸  Nor can an alien be rewarded, at the expense of qualified American workers, for experience gained while working in direct violation of his immigration status.

In each of these cases, the District Court, advertently to Pesikoff,¹¹⁹  appraised on the administrative records¹²⁰  the Secretary's survey of the labor market,¹²¹  the applicants' responses to their resulting burden of proof,¹²²  and the administrative determinations that in neither instance had the burden been carried.¹²³  In the situations presented, the court was unable to discern any error of law or abuse of discretion,¹²⁴  nor can we.¹²⁵  The judgments appealed from are accordingly

Affirmed.