OPINION
This action is before the Court on plaintiffs’ motion for summary judgment seeking a declaratory judgment under 28 U.S.C. § 2201 and judicial reviеw under the Administrative Procedure Act, 5 U.S.C. §§ 704, 705 and 706 of the Regional Manpower Administrator’s denial of labor certificаtion. Plaintiff, Guillermo Feria, had been offered and accepted employment with the plaintiff, Digilab, Inc., but the Mаnpower Administrator denied plaintiffs’ application for certification. Defendants’ motion for summary judgment and judgment on the pleadings has previously been denied by this Court in an order dated February 1, 1973.
After due consideration оf oral arguments heard on April 13, 1972 and study ■ of the memorandа of law supplied by the parties and the pleadings to date, the Court finds that there is no genuine issue of material fact in dispute and that the case is thereby ripe fоr summary judgment.
In previously denying defendants’ motion for judgment on thе pleadings, this Court ruled that it did have jurisdiction to review an administrative determination where there is an alleged abuse of discretion. Song Jook Suh v. Rosenberg,
In applying this test to the instant case, the Court finds that defendant Manpower Administrator has abused his discretion. The term “no evidence” as stated in Song Jook Suh v. Rosenberg, supra, сannot be interpreted to mean “any” evidence, no matter how little. It must be interpreted to mean evidеnce sufficient to satisfy what Congress has mandated in 8 U.S.C. § 1182(a)(14). Thаt is, that there must be a determination by the Administrator that therе are sufficient workers in the United States who are “able”, “willing”, “qualified” and “available” at the time of the apрlication. Unless such a finding appears in the administrativе record, an alien certification should not be dеnied under § 1182(a)(14)(A).
The administrative record in the case at bar indicates no more than that the determination was based on a listing in California of 200 electrical engineers. Nowhere does the record indicate that these 200 engineers were “able”, “willing”, “qualified” and “available” to the plaintiff corporation. The Court finds that the actions of the Administrator were not in compliancе with the express requirements of the statute. Golabek v. Rеgional Manpower Administration,
Two recent casеs are in point with the position taken in this matter by this Court. Farinо et al. v. Secretary of Labor et al., Decision аnd Order, U.S.D.C., N.D. of Illinois (E.Div.), No. 71-C-2495, and Bitang et al. v. Regional Man-Power Administrator, Memorandum of Decision, U.S.D.C., N.D. of Illinois (E.Div.),
For reasons mentioned aforesaid, the Court orders that plaintiffs’ motion for summary judgment be allowed and that the defendants issue the requested alien certification to plaintiff Feria pursuant to 8 U.S.C. § 1182(a) (14).