ON APPEAL FROM ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 74-1085).
Aldisert, Hunter and Garth, Circuit Judges.
This case presents for our consideration the Secretary of Labor's (Secretary) denial of labor certification to an alien. We hold that the wage established under a negotiated collective bargaining agreement and paid to alien and non-alien workers alike cannot be deemed to "adversely affect the wages and working conditions" of Americans similarly employed within the meaning of 8 U.S.C. § 1182(a)(14). We thus conclude that the Secretary*fn1 acted contrary to law in denying certification and affirm the district court's issuance of a writ of mandamus.
Plaintiff-appellee Naporano Metal and Iron Co. (Naporano), a corporation located in Newark, New Jersey, applied for labor certification pursuant to 8 U.S.C. § 1182(a)(14)*fn2 on behalf of Elisio Carvalhal da Silva (Silva), an alien lawfully within the United States. Naporano employed Silva as a welder and cutter of scrap metal at a wage established by the collective bargaining agreement negotiated between Naporano and Local 374 of the Laborers' International Union of North America.
On February 28, 1974 a Certifying Officer for Region II of the Department of Labor*fn3 denied Naporano's application because Silva's wage of $3.87 per hour, the union negotiated rate, was below the prevailing wage rate of $4.63 per hour for welders in the Newark, New Jersey area. Naporano appealed from this decision to the Assistant Regional Director for Manpower for Region II of the Department of Labor.*fn4 On July 9, 1974, the Assistant Regional Director's designated representative*fn5 affirmed the denial of labor certification because Silva's wage (then $4.12 per hour as a result of a $.25 per hour increase under the union contract) was below the prevailing wage rate for that occupation in the area. This constituted a final administrative determination of Naporano's application. 29 CFR § 60.4(c).
Naporano thereafter commenced this action in the United States District Court for the District of New Jersey under 28 U.S.C. § 1361,*fn6 seeking a declaration that the Secretary of Labor's action was unlawful and for relief in the form of a mandatory injunction. The district court, concluding that the Secretary of Labor acted arbitrarily and that he abused his discretion in denying labor certification to Silva, granted Naporano's motion for summary judgment and issued a writ of mandamus ordering the Secretary to certify Silva under 8 U.S.C. § 1182(a)(14) (A & B). The Secretary timely appealed from the district court's order. Pursuant to agreement of the parties, the district court ordered the writ of mandamus stayed pending appeal. Our jurisdiction is predicated on 28 U.S.C. § 1291.
The Administrative Procedure Act, 5 U.S.C. § 701 et seq., provides that an aggrieved person may seek judicial review*fn7 of the Secretary's denial of labor certification under 8 U.S.C. § 1182(a)(14). Yong v. Regional Manpower Administrator, 509 F.2d 243, 245 (9th Cir. 1975); Ratnayake v. Mack, 499 F.2d 1207, 1209-1210 (8th Cir. 1974); Reddy Inc. v. United States Department of Labor, 492 F.2d 538, 543-44 (5th Cir. 1974); Secretary of Labor v. Farino, 490 F.2d 885, 888 (7th Cir. 1973). Naporano is an "aggrieved" party within the meaning of 5 U.S.C. § 702, for as a result of the Secretary's denial of certification, Naporano has but two options available: either it can increase Silva's wage in order to secure labor certification or it must forego Silva's needed services. In either case Naporano is "adversely affected or aggrieved" by the Secretary's action and therefore has standing under the Administrative Procedure Act.*fn8 Yong v. Regional Manpower Administrator, supra at 245; Pesikoff v. Secretary of Labor, 163 U.S. App. D.C. 197, 501 F.2d 757, 760 (D.C. Cir.), cert. denied, 419 U.S. 1038, 95 S. Ct. 525, 42 L. Ed. 2d 315 (1974); Secretary of Labor v. Farino, supra at 889.
Under the Administrative Procedure Act, a federal court may
(2) hold unlawful and set aside agency action, findings, and conclusions found to be --
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in ...