to plaintiff for the reason that there were sufficient resident workers available to fill the position held by the plaintiff.
The threshold issue for this court's consideration is whether jurisdiction exists in this instance where plaintiff's complaint is based solely on the Administrative Procedure Act, 5 U.S.C.A. §§ 701-706, which provides for judicial review of agency actions. The Government contends that plaintiff has misplaced his reliance on the APA as the sole basis for jurisdiction in this court. In support of its argument the Government relies chiefly upon Zimmerman v. U.S. Government, 422 F.2d 326, 330-331 (3d Cir. 1970) for the proposition that the APA is remedial in nature and cannot serve as an independent basis for jurisdiction, citing Local 542, International Union of Operating Engineers v. N.L.R.B., 328 F.2d 850, 854 (3d Cir. 1964), cert. den. 379 U.S. 826, 85 S. Ct. 52, 13 L. Ed. 2d 35 (1964). We note that subsequent Third Circuit cases have repeatedly held that the APA does not confer jurisdiction upon federal courts over cases not otherwise within their competence
but find plaintiff's argument to the contrary persuasive on this point.
In immigration and naturalization cases there is a general tendency to favor judicial review of administrative action. Estrada v. Ahrens, 296 F.2d 690, 695 (5th Cir. 1961). Indeed judicial review of agency action has broadened considerably in scope in recent years. See: Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971).
Plaintiff has cited ample authority to support this court's jurisdiction in this instance. We note further that other district and circuit courts have upheld their jurisdiction to review certification denials where there is an alleged abuse of discretion.
Likewise, the Third Circuit
in the case of Golabek v. Regional Manpower Administration, 329 F. Supp. 892, 894 (E.D.Pa.1971), had held that district courts have jurisdiction to review the findings of the Secretary of Labor made pursuant to § 212(a)(14) of the Immigration and Nationality Act, as amended, 8 U.S.C.A. § 1182(a)(14). However, that review is qualified to the extent that it is limited to determining whether the Secretary abused his discretion or committed an error of law. See also: Seo v. U.S. Department of Labor, 523 F.2d 10, 12 (9th Cir. 1975); Yusuf v. Regional Manpower Administration, etc., supra, n. 13.
Therefore, we find that the Administrative Procedure Act does provide a jurisdictional basis for plaintiff's suit based upon a denial of an employment certification as required by 8 U.S.C.A. § 1182(a)(14).
Defendant next contends that even if the agency's determination is deemed reviewable by this court, plaintiff's suit is nevertheless barred by the doctrine of sovereign immunity. In support of this argument, the defendant relies primarily upon Larson v. Domestic and Foreign Commerce Corporation, 337 U.S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949). However, we do not find that this doctrine serves as a complete bar in cases of this nature.
The Fourth Circuit, in Littell v. Morton, 445 F.2d 1207, 1213 (4th Cir. 1971),
stated that the doctrine of sovereign immunity applies independently of the judicial review provisions of the APA. Thus, having concluded that judicial review is available to plaintiff under the APA, sovereign immunity may nevertheless still act as a bar to plaintiff's action. Yet, as in Littell v. Morton, supra, we find that the justifications for the doctrine's application are not compelling here. In no way does the plaintiff's action constitute a ". . . substantial bothersome interference with the operation of government,"
nor will the effect of a judgment for plaintiff be to "restrain the Government from acting, or to compel it to act." Littell v. Morton, supra, at page 1213. Indeed the Government has already acted by denying plaintiff's request for an employment certification. Thus, the Government's argument on this point
is not persuasive in light of the recent case of Yusuf v. Regional Manpower Administration of the U.S. Department of Labor, supra, note 13, involving an alien certification proceeding, wherein the court stated that an alien's suit challenging a denial of his application for alien certification by the ARDET was not barred by the doctrine of sovereign immunity, citing Littell v. Morton, supra.18 We thus hold that plaintiff's action based on the APA is not barred by the doctrine of sovereign immunity.
We turn now to the final issue for consideration, namely whether the defendant abused his discretion in denying a labor certification to the plaintiff. Golabek v. Regional Manpower Administration, supra ; See also: Bitang v. Regional Manpower Administrator of the U.S. Department of Labor, supra, n. 13.
Various standards have been applied in making that determination. One such standard is whether, based upon the facts in the administrative record, it can be said that the defendant's decision was,
". . . made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as an invidious discrimination against a particular race or group . . ." Wong Wing Hang v. Immigration and Naturalization Service, 360 F.2d 715, 719 (2d Cir. 1966); Wan Ching Shek v. Esperdy, 304 F. Supp. 1086, 1087 (S.D.N.Y.1969).