Richard B. Pesikoff et al., Appellants, v. the Secretary of Labor, 501 F.2d 757 (D.C. Cir. 1974)

Appellants seek review of a decision of the Secretary of Labor denying certification for appellant Quintero to enter the United States as an alien seeking to perform skilled or unskilled labor. Appellants filed in the District Court a complaint requesting, pursuant to 28 U.S.C. 2201 (1970) and 5 U.S.C. 704 (1970), a declaratory judgment that the Secretary's decision was an unlawful exercise of his authority under Section 212(a) (14) of the Immigration and Nationality Act, 8 U.S.C. 1182(a) (14) (1970). The District Court dismissed the complaint for failure to state a cause of action, and this appeal followed. We find that the Secretary, in declining to grant certification, did not abuse the discretion vested in him by Section 212(a) (14) and affirm.

* Appellant Pesikoff is a Houston child psychiatrist. His wife was a law student when this action was commenced. They are the parents of two preschoolage children. Because of the time demands on him and his wife, Dr. Pesikoff felt it important that he obtain help in caring for his household. He states he attempted to find such assistance through newspaper advertisements, employment agencies, and inquiries with friends. He learned from the latter source that appellant Quintero, a citizen of Mexico with experience in caring for children, was available to work as a live-in maid. Dr. Pesikoff entered into a contract with Ms. Quintero under which she was to be paid $70 per week plus room and board for providing washing, ironing, cooking, and care for the two Pesikoff children. Though Ms. Quintero was to live in, Dr. Pesikoff represented to the Secretary that her work day was to have been only from 8:00 a.m. to 12:00 noon and from 2:00 p.m. to 6:00 p.m.

On or about July 20, 1971 appellants submitted a request to the Department of Labor that the Secretary, pursuant to Section 212(a) (14), certify Ms. Quintero for immigration into this country for the purpose of being employed by the Pesikoffs as a live-in maid. Section 212(a) (14) provides for exclusion from the United States of:

Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed. * * *

8 U.S.C. 1182(a) (14). A Department of Labor Manpower Administration officer in Dallas, Texas, to whom the Secretary's authority under this provision had been delegated, informed Dr. Pesikoff on July 28, 1971 that the Secretary could not issue for Ms. Quintero the certification required by Section 212(a) (14) because available job market information did not show that United States workers were unavailable for the job Ms. Quintero was to perform. Before denying Dr. Pesikoff's request the certifying officer had been advised by the Texas Employment Commission that there were approximately 180 maids registered in the Commission's Houston office. The Employment Commission also advised that inquiries of employers and perusals of newspaper advertisements enabled it to estimate that in excess of 100 maids were available for work. The Commission indicated, however, that very few of the registered workers would accept jobs that required cooking and that none were willing to live in.

In affirming the certifying officer's decision, the Labor Department's Assistant Regional Manpower Administrator in Texas cited the Employment Commission's report on the general availability of maids in Houston. The Administrator stated that the absence in Houston of maids willing to live in was irrelevant to the Pesikoff application because 'based on the job described and hours of work, the live-in requirement is a personal preference and not a necessity in the performance of the job.' In March 1972 appellants filed in the District Court their complaint against the Secretary, dismissal of which we now review.

II

The Secretary contends that we must affirm the dismissal because both appellant Pesikoff and appellant Quintero lack standing to challenge denial of Section 212(a) (14) certification. Inasmuch as we hold that Dr. Pesikoff, as the prospective employer of the alien for whom certification was sought, does have standing and because Dr. Pesikoff and Ms. Quintero have jointly sought judicial review, it is not necessary for us to consider whether Ms. Quintero, as an alien outside the country, may also challenge denial of her certification.

The Supreme Court has held that Section 10(a) of the Administrative Procedure Act¹  confers standing to obtain review of administrative actions upon those parties who allege 'that the challenged action had caused them (an) 'injury in fact,' * * * to an interest 'arguably within the zone of interests to be protected or regulated' by the statutes that the agencies were claimed to have violated.' Sierra Club v. Morton, 405 U.S. 727, 733, 92 S. Ct. 1361, 1365, 31 L. Ed. 2d 636 (1972). See Assn of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970); United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 686-690, 93 S. Ct. 2405, 37 L. Ed. 2d 235 (1973). An application of the Supreme Court's principles of standing to this case generates our conclusion that Dr. Pesikoff may seek judicial review of Ms. Quintero's certification denial. First, if Dr. Pesikoff is correct in alleging that he cannot find an American worker who is able to perform the domestic tasks which Ms. Quintero has contracted to perform, he has clearly suffered an 'injury in fact' by the certification denial, for the Secretary's certification is a necessary precondition for Ms. Quintero to enter the United States to work for Dr. Pesikoff. Second, this injury is to an interest-- that of American employers in obtaining qualified employees-- arguably within the zone of interests to be protected or regulated by Section 212(a) (14). The section on its face suggests a congressional accommodation between this employer interest and the interest of American workers in being protected from importation of foreign labor which could affect their wages and working conditions or even eliminate their jobs. Though this accommodation takes the form of regulation of the employer's pursuit of his interest and the regulation subordinates this pursuit to the protection of American workers, the employer's need for qualified workers is clearly not ignored by the section.² 

The Secretary bases his claim that prospective employers such as Dr. Pesikoff lack standing to invoke judicial review of his exercise of Section 212(a) (14) authority on three cases: Braude v. Wirtz, 9 Cir., 350 F.2d 702 (1965); Cobb v. Murrell, 5 Cir., 386 F.2d 947 (1967); Intercontinental Placement Service, Inc. v. Shultz, 3 Cir., 461 F.2d 222 (1972). None of these cases gives us pause. The Braude and Cobb courts did decline to grant standing to prospective employers to challenge certification denials, but these decisions were entered prior to the Supreme Court's liberalizing clarification of standing in Data Processing and Barlow, supra. The Braude and Cobb courts employed the old strict 'legal right' test in applying Section 10(a) of the Administrative Procedure Act; since Data Processing and Barlow this test has been superseded by the two-step 'injury in fact'-- 'zone of interests' analysis utilized above.³  The Secretary's third case, Intercontinental Placement Service (IPS), was decided after Data Processing and Barlow and indeed relied on the two-step analysis which they established. The IPS court relied on this analysis, however, to deny standing to an employment agency which locates positions for aliens with American employers. Though we do not necessarily concur in the IPS court's holding, we note that our grant of standing to a prospective employer need not conflict with that court's denial of standing to an employment agency for aliens.

We note finally that our grant of standing to Dr. Pesikoff is given direct support by Secretary of Labor v. Farino, 7 Cir., 490 F.2d 885 (1973), decided the day after oral argument in our case. The Farino court, applying the 'injury in fact'-- 'zone of interest' analysis, held that prospective employers have standing to seek review of denials of Section 212(a) (14) certifications.⁴ 

III

Having resolved the threshold standing issue in favor of appellant Pesikoff, we turn to the merits of his challenge to the Secretary's denial of Ms. Quintero's certification. Dr. Pesikoff asserts that the Secretary's denial constituted an abuse of his discretion under Section 212(a) (14) because it was based on insufficient evidence.⁵  More specifically, Dr. Pesikoff argues that the Secretary should have presented evidence sufficient to prove that there were particular workers available, willing, able, and qualified to perform all the tasks Ms. Quintero had contracted to perform and to live in with the Pesikoffs while doing so.

Our evaluation of Dr. Pesikoff's position must commence with an analysis of the section and its legislative history. We first stress that the section is written so as to set up a presumption that aliens should not be permitted to enter the United States for the purpose of performing labor because of the likely harmful impact of their admission on American workers. This presumption, the statutory language makes clear, can be overcome only if the Secretary of Labor has determined that the two conditions set forth in parts (A) and (B) of the subsection are met.⁶  This structuring of the statute strongly indicates that the Secretary is not obligated to prove in the case of every alien seeking entry to perform labor that the conditions are not met. Given the presumption of the statute against admission, if the Secretary's consultation of the general labor market data readily available to him suggests that there is a pool of potential workers available to perform the job which the alien seeks, 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.

This interpretation of the statute is supported by its legislative history. Before enactment of the 1965 amendments to the Immigration and Nationality Act, Section 212(a) (14) was structured to permit entry to aliens seeking to perform labor in the United States unless the Secretary of Labor certified that there were sufficient American workers available to perform such labor or that the employment of the aliens would adversely affect the wages and working conditions of American workers.⁷  The Senate and House reports on the 1965 amendments to the Act make clear that Congress, by restructuring Section 212(a) (14) to exclude such aliens unless the Secretary certified that there were not sufficient American workers available, intended to reverse the prior presumption favoring admission to strengthen the protection of the American labor market and to reduce the burden on the Secretary in implementing this protection.⁸  Moreover, Senator Kennedy, who played a major role in shepherding the 1965 amendments through Congress, stated on the Senate floor:

Under (the old) procedure, the Secretary certifies that aliens falling under certain occupational or skill definitions should be excluded because they will threaten domestic employment. The new bill reverses this procedure. It places the burden of proving no adverse effect on the applying alien. The intending immigrant must receive a certificate from the Secretary of Labor that his presence will not affect U.S. employment, wages, or working conditions.

111 Cong.Rec. (Part 18) 24227 (1965).

In light of our interpretation of Section 212(a) (14) and the legislative history supporting this interpretation,⁹  we conclude that the Secretary's denial of Ms. Quintero's certification did not constitute an abuse of discretion. First, we find proper the Secretary's treatment of Dr. Pesikoff's live-in requirement for his maid as a personal preference irrelevant to determination of whether there was in Houston a pool of potential workers willing to perform the Pesikoffs' domestic tasks. If the Secretary were required to find an individual American worker who met all the personal specifications of the prospective employer of each alien seeking Section 212(a) (14) certification, the burden on him in performing his statutory duty to protect the American labor market would be much greater than Congress intended in passing the 1965 amendments to the Act. It 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.¹⁰  The Secretary may, therefore, survey the available labor market for 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 his job accomplished. The Secretary's treatment and classification of Dr. Pesikoff's employee request as one for a general maid who could live in or out was an appropriate exercise of the above described discretion. Dr. Pesikoff's statement to the Labor Department that Ms. Quintero would work only from 8:00 a.m. to 12:00 noon and 2:00 p.m. to 6:00 p.m. indicates that her need to live in is not significantly different from that of millions of American workers who readily and adequately perform their duties without living at their employment site.

We think the Secretary's treatment of Dr. Pesikoff's live-in preference was appropriate for an additional reason. As set forth above, Section 212(a) (14) provides that in order to grant an alien labor certification the Secretary must determine, not only that there are not American workers available, but also that employment of the alien will not adversely affect American wages and working conditions. The Secretary could well predict that the wages and working conditions of American maids would be adversely affected if Americans seeking domestic help could import, at the prevailing wage for liveout daily maids, aliens to work as live-in maids who are almost continuously on call. There is nothing in the record which moves us to question Dr. Pesikoff's representation that Ms. Quintero would have limited working hours. However, if the Secretary were to deem relevant to his survey of the available American work force a live-in preference of an employer who represents that his maid will work limited daytime hours, an American employer intending to work an alien at least intermittently around the clock could, by simple misrepresentation, defeat one of the primary purposes of Section 212(a) (14).¹¹  Our analysis above of the section and its legislative history indicates that the Secretary has discretion to protect the American labor market against such employers with prophylactic procedures such as the employer personal preference disposition he made here.¹² 

Given our conclusion that the Secretary's treatment of Dr. Pesikoff's live-in preference was proper and our analysis of Section 212(a) (14), we have no difficulty in finding the Secretary had adequate support for his denial of certification. The Secretary, prior to that denial, had been informed by the Texas Employment Commission that it estimated from independent sources that in excess of 100 workers were available for general maid work in Houston and that 180 workers were registered as maids at the Commission's Houston office. To be sure, the Employment Commission in its report to the Secretary stated that a majority of the registered maids were already employed on a part-time basis¹³  and that very few were willing to cook.¹⁴  We think, however, that the general data provided the Secretary by the Commission offered sufficient evidence of a pool of potential workers to support certification denial, at least in the absence of any evidence offered by Dr. Pesikoff or Ms. Quintero proving it was impossible to find an appropriate worker in this pool.¹⁵  Dr. Pesikoff apparently did not attempt to offer any such evidence to the Secretary, and he suggests to us no evidence he could offer on remand. He does not even represent that he made any attempt to contact the maids registered at the office. We think it clear that Congress did not intend Section 212(a) (14) to create an employment placement office in the Department of Labor; there is no onus on the Secretary to provide personal preference employers like Dr. Pesikoff with personal preference qualified American workers.

Affirmed.

MacKINNON, Circuit Judge, concurring in part and dissenting in part:

This case arises on appeal from an order of the district court dismissing under Rule 12(b) (6) a complaint for declaratory judgment under 28 U.S.C. 2201 (1970) and for review under section 10(c) of the Administrative Procedure Act (5 U.S.C. 704(1970)) of the denial of a request for a labor certification by the Secretary of Labor. I would reverse.

* Appellant Pesikoff is a child psychiatrist in Houston, Texas. At the time this action was commenced his wife was a law student and they had two children, aged two and four. The Pesikoffs felt it 'mandatory that (they) obtain live-in domestic help, because of (their) busy professional schedules, to assist (them) with the children and the house.'¹  Dr. Pesikoff made extensive efforts to obtain such help through newspaper advertisements, employment agencies and the assistance of friends. He learned that appellant Quintero, a native and citizen of Mexico, was qualified and willing to accept such employment and he accordingly applied on her behalf for the labor certification necessary to admit her to the United States. The application was denied on July 28, 1971 by the certifying officer and his decision was affirmed on appeal by an Assistant Regional Manpower Administrator on September 8, 1971. In March 1972 appellants filed their complaint against the Secretary, the dismissal of which gives rise to this appeal.

II

The two central issues²  raised on this appeal are, first, whether appellants have standing to contest the Secretary's determination under the applicable statute, and second, whether the Secretary's denial of certification can be sustained on the merits. The inquiry begins, of course, with section 212(a) (14) of the Immigration and Nationality Act (the Act), which provides in relevant part:

(a) General classes.

Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:

(14) Aliens seeking to enter the United States for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.

8 U.S.C. 1182(a) (14) (1970).

I concur with the majority that a prospective employer of an alien worker has standing to contest the denial of a labor certificate under subsection (a) (14).³  Section 10(a) of the Administrative Procedure Act (5 U.S.C. 702 (1970)) grants standing to seek judicial review of agency action to any person adversely affected or aggrieved by such action within the meaning of a relevant statute. Based upon the two step analysis established by Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970) and Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970), it is my conclusion that Dr. Pesikoff has standing to bring the instant action. First, he has suffered 'injury in fact' through the denial of entry to an alien he wishes to employ in circumstances which suggest the probability that he will be unable to find an acceptable substitute. Second, his interests as a prospective employer of an alien worker are 'arguably within the zone of interests to be protected or regulated by' subsection (a) (14), since a review of the legislative history of this subsection demonstrates that it was intended to protect the jobs of American workers from inexpensive foreign labor through the regulation of certain employment practices of American employers.⁴ 

In Secretary of Labor v. Farino, 490 F.2d 885 (7th Cir. 1973), decided the day after oral argument in this case, it was held that employers of aliens who required labor certification under section 212(a) (14) had standing to seek review of denials of such certifications under APA section 10(a). There, the section 212(a) (14) certifications were necessary to obtain sixth preference visas for aliens apparently already in the United States so that they could continue their employment. Farino, also relying on the trend toward more liberalized rules of standing marked by Data Processing and Barlow, supra,⁵  stated that the aliens' employers had standing because

it is clear that these plaintiffs have adequately alleged that they will be economically injured if not permitted to employ these aliens. Further, the legislative history makes clear that Section 1182(a) (14) was substituted for, and intended to fulfill the purpose of, the pre-existing 'contract labor clauses.' House Report No. 1365, 82d Cong., 2d Sess., 1952 U.S.Code Cong. and Adm.News, pp. 1653, 1661-1662, 1705. Thus potential employers of aliens are within the zone of interests to be regulated.

490 F.2d at 889.

B. The 'Personal Preference' Characterization

Aliens shall be denied entry into the United States for employment purposes unless the Secretary affirmatively determines that there are no 'able, willing, qualified, and available' American workers. Act 212(a) (14), 8 U.S.C. 1182(a) (14). Applications for a labor certificate must be decided on an individual basis and the Secretary is required by regulation to consider the findings of state employment agencies in reaching his decision. 29 C.F.R. 60.3 (1973). The Secretary also may conduct an independent investigation but there is no evidence as to whether one was made in this case. Thus the facts on which the denial of certification was based must be considered to be solely those supplied by the Texas Employment Commission to the Secretary:⁶ 

(There are) approximately 180 Maids (and) approximately 125 Dayworkers . . . 75% . . . are working one to three days a week, but . . . are seeking extra days to fill the week. Many change jobs frequently and definitely are not interested in live-in work. Very few will accept jobs that require cooking. (Employers) find that it is seldom they can find an applicant who is desirable, or who can furnish valid references.

The labor certificate was denied in this case on the basis that there were American workers available.⁷  The Secretary argues that (1) the Pesikoffs would only require the maid to work from 8:00 A.M. to 12:00 P.M. and from 2:00 to 6:00 P.M., (2) a day, non-live-in maid could fulfill this requirement adequately, and therefore, (3) their desire for a live-in maid was only a personal preference the denial of which was not an abuse of the Secretary's discretion.⁸ 

The pivotal issue is the reasonableness of the personal preference characterization,⁹  for it is clear that no workers would accept live-in employment and that the certification accordingly would have to be granted if Dr. Pesikoff's desire for a live-in maid was something more than merely a 'personal preference.' The majority opinion finds the personal preference characterization in this case to be valid and dispositive. In reaching this conclusion, however, the majority has failed to correlate elements of the characterization with any support in the record. It is submitted that this is fundamental error and disregards a basic precept of judicial review. The approach thus taken allows the majority freely to dispense with any remand to the Secretary and avoids the opportunity to enunciate standards to govern both the instant and future cases in this area. A remand to the Secretary in this case would be particularly appropriate because prior cases have been dismissed for lack of standing. No person had standing to contest the Secretary's determinations under prior law and therefore he was free to act as he pleased. We should now set forth, so far as the facts of this case permit, standards that would inform and structure the Secretary's decisional process and, concomitantly, assure intelligent judicial review of future decisions.¹⁰ 

With these consequences of the majority's approach in mind, the specific defects of the court's opinion are now explored seriatim. First, the majority is concerned that a contrary decision would unduly burden the Secretary.¹¹  However, data on such matters as the status and availability of domestic workers, both live-in and live-out, is something which the Department of Labor should routinely collect. Indeed, in 1969 the Department on its own initiative commenced 'as standard procedure' the collection of data on the availability of live-in domestics on a bi-monthly basis, such data to be distributed regularly to the regional offices.¹² 

Second, the opinion posits that Dr. Pesikoff's need for a live-in maid 'is not significantly different from that of millions of American workers who reliably and adequately perform their duties without living at their employment site.'¹³  However, the Secretary must deal with each case on an individual basis¹⁴  and there is no showing that he did anything more than apply a broad generalization to the specific circumstances of this case. The Department of Labor has recognized that a case involving parents who both work and have pre-school age children presents special considerations which should be explored. Guidelines in this area have been promulgated to 'help assure that regional offices make determinations that are consistent and reasonable.'¹⁵  For example, certification of an alien live-in domestic will be approved.

if there is absolutely no availability of live-in, live-out, or dayworkers because of insurmountable transportation difficulties or other specific identifiable reasons, and no adverse effect . . ..¹⁶ 

'Example II' of the guidelines provides:

In addition to housekeeping, the duties specified include care of preschool age children . . . or similar hardship. (In this situation, if) there is absolutely no availability or adverse effect, the basis for considering the stated condition for child care . . . must be fully explored and when reasonable should be documented. Certification can be issued if it is ascertained that the job duties and hours are reasonable and that the possible irregularity of attendance of dayworkers would create hardship.¹⁷ 

These easily identifiable concerns-- transportation difficulties, care of preschool age children and the possible irregularity of attendance of dayworkers (specifically tied to the problem of preschool age children)¹⁸  -- demonstrably establish, as the Secretary's own guidelines recognize, that special consideration is required for applications such as are involved in this case. The expertise underlying the promulgation of these guidelines belies the easy assumptions made in the majority opinion.

Moreover, the application of simple logic to the above guidelines, which are designed to insure 'consistent and reasonable' action by the Secretary's delegates, supports the argument that the desire for a live-in maid in the circumstances of this case is something substantially more than merely a personal preference. The guidelines control the disposition of applications for certifications of alien, live-in domestic workers. However, 'if there is absolutely no availability of live-in, live-out, or dayworker,'¹⁹  an alien still will not be granted certification for live-in employment absent a showing of additional need by the employer.²⁰  It seems logical that if all of these workers are to be classified as a homogeneous group for certification purposes, then when no domestics of any type are available an employer should be able freely to choose the type he desires. Yet quite clearly, where there are no workers of any kind available, a prospective employer of a live-in maid is required to prove the existence of special, 'hardship' conditions before certification will issue.

This anomaly of logic may be resolved on either of two bases: either the Secretary has established an administrative bias against live-in domestics (for reasons not illuminated on this record) or the incidents of employment as a live-in domestic are in fact sufficiently distinct from those of a live-out domestic to support the conclusion that a desire for live-in help is something more than a personal preference. The former rationale is plainly unsupportable on this record under section 212(a) (14) (A), and the latter demonstrates, at a minimum, that a remand is necessary to explore the particular needs of Dr. Pesikoff in order to determine whether admission of an alien as a live-in maid for his family would be justified.

Finally, the majority asserts as an alternative, and perhaps the true, ground for its decision the principle that an alien may be certified under section 212(a) (14) only if his or her employment 'will not adversely affect American wages and working conditions.'²¹  This correctly states the law but has no relevance to this case, since there are no facts in the record that would even suggest such a possibility in this case. Thus the opinion states that the 'Secretary could well predict' such adverse effects and that 'by simple misrepresentation' an employer could gain admission of an alien he intended to exploit. It is suggested that these determinations properly are to be made in the first instance by the Secretary and are not susceptible to judicial supposition. This again demonstrates the appropriateness of a remand to the Secretary for his independent and expert consideration.

III

Several general comments on the majority opinion relating to the incidence of the burden of proof and the necessity for a remand are also pertinent here. The majority places the burden of proving unavailability upon the prospective employer.²²  Although this is consistent with the statutory structure, it does present a problem not considered in the majority opinion. That is, the majority would have the employer carry the ultimate burden of persuasion that he has been unable, or that it is impossible, to find an 'able, willing and qualified' American worker-- in a sense, then, the majority would have him prove the existence of the non-existent, a sometimes difficult proposition. The most practical method of proving the negative facts required for certification to issue is that followed by Dr. Pesikoff in this case, but with perhaps greater documentation. He made extensive efforts to find a suitable employee through newspaper advertisements, employment agencies and the assistance of friends. When such efforts prove unsuccessful, the burden of production on the unavailability issue has been satisfied. The Secretary then must introduce sufficient competent evidence to overcome that adduced by the employer, failing which certification must issue.

Moreover, the nature of the proof presented by each side is necessarily implicated and should be scrutinized carefully. For example, the Secretary may introduce statistics that tend to establish sufficient availability, while the employer may show that even with the most diligent and good faith efforts a suitable employee could not be found. This tension between theoretical and actual availability properly may be resolved in favor of the employer, for judges, no less than those they judge, live in the real world and must act accordingly. This resolution, moreover, does no violence to the statutory scheme envisioned by the Congress, since it may be assumed that the Congress equally was concerned only with the actual rather than the theoretical loss of employment by an American worker.

Finally, assuming for the moment that the Secretary's personal preference characterization is valid, a remand nonetheless would be appropriate in order to preserve the distinct possibility that Ms. Quintero could be certified for admission on the basis that even live-out domestics are not reasonably available. The majority opinion notes in this regard that the evidence represented by the Texas Employment Commission's report establishes 'a pool of potential workers (sufficient) to support certification denial . . ..'²³  In the footnote to this statement,²⁴  the opinion posits that 'if the report of the State Employment Service stood unimpeached,' the Secretary's determination must be sustained. The simple fact is, however, that the Commission's report on which the majority relies has been impeached, and by the Secretary himself. Counsel for the Secretary vigorously asserts:

Appellants would like the Court to rely on the statement of the (Texas) Employment Commission. As anyone who has dealt with state employment commissions knows, they are not a final and conclusive, nor even an efficient, repository for information with regard to positions and employees available. They exist primarily to administer unemployment compensation programs.²⁵ 

If the Secretary, through his counsel, represents that this court cannot justifiably rely on such evidence, it is submitted that a remand is necessary to develop a record comprised of competent evidence, evidence of sufficient quality to insure the sound adjudication of the case at bar.

In summary, the majority, perhaps in the belief that a remand would be a futile gesture, finds the material facts itself without the benefit of a potentially illuminating factual inquiry at the district court or administrative level. Mindful of the fact that this case was dismissed on the pleadings by the district court for failure to state a cause of action and that the record at the administrative level could only fairly be termed barren, one arrives ineluctably at the conclusion that the majority has arrogated administrative and trial court functions an appellate court was never intended to and does not possess. The result is that Dr. Pesikoff's request-- and it is fairly humble-- that he be given the opportunity to prove the provable is spurned.

I dissent.