20 C.F.R. § 656.40(a)(1) (emphasis added).
Pursuant to authority conferred by statute and regulation, see, e.g., Davis-Bacon Act, 40 U.S.C. § 276a et seq. (setting rates of wages for laborers and mechanics employed under government contracts); 29 C.F.R. §§ 1.1-1.9 (1984) (procedures for predetermination of wage rates), the DOL periodically publishes wage determinations for certain jobs, including the job of residential bricklayer. According to these published DOL wage determinations, the prevailing wage for residential bricklayers in Washington, D.C. in 1979 was $ 7.50 per hour. DOL Employment Standards Administration's General Wage Determination Decisions, Decision No. DC76-3171, 41 Fed. Reg. 21,022, 21,027 (1976); see also Affidavit of Charles J. Hayes (Exhibit I attached to Plaintiffs' Cross-Motion for Summary Judgment). The plaintiffs argue -- and this Court agrees -- that both the DOL and the INS were bound by this published wage determination in evaluating the plaintiffs' application.
Attempting to diminish the force of this analysis based upon the DOL's published wage determinations, the defendants contend that the $ 7.50 wage determination published by the DOL in 1976 was no longer controlling in 1979 when the plaintiffs applied for DOL certification. The defendants rely upon the DOL's new -- and superseding -- wage determinations published in May 1980 that set the prevailing wage for a residential bricklayer at $ 10.60 per hour. See DOL Employment Standards Administration's General Wage Determination Decisions, Supersedeas Decision No. DC80-3039, 45 Fed. Reg. 30,968, 30,976 (1980). Accordingly, the defendants argue that, assuming a gradual incremental increase from the 1976 prevailing wage of $ 7.50 to the 1980 prevailing wage of $ 10.60, the 1979 prevailing wage had to be between $ 9 and $ 10 per hour.
While this argument may be highly creative, it is also highly unpersuasive. It defies common sense that a prevailing wage, set as a matter of law by publication in the Federal Register, would increase sua sponte over time; absent clairvoyance, what source other than the 1976 published wage determination decisions could the DOL consult in 1979 to arrive at the prevailing wage? Furthermore, the defendants' argument also flies in the face of the DOL's explicit statements that "General Wage Determination Decisions are effective from their date of publication in the Federal Register without limitation as to time," 41 Fed. Reg. at 21,022 (emphasis added), and that "modifications and supersedeas decisions are effective from their date of publication in the Federal Register without limitation as to time," 45 Fed. Reg. at 30,968 (emphasis added); see also March 29, 1990 Letter from Nancy M. Flynn, Acting Administrator of DOL's Employment Standards Administration (attached as Exhibit 1 to Plaintiffs' Reply) (Wage Decision No. DC76-3171, and its prevailing wage rate of 7.50 per hour, was in effect in 1979 and until it was superseded in 1980).
In short, the Court will not defer to an INS prevailing wage analysis that directly contradicts the DOL's published governing wage determination decision. Because the Court holds, as a matter of law, that the DOL set the prevailing wage for a residential bricklayer, like Perdomo, in Washington, D.C. in 1979 at $ 7.50 per hour, 41 Fed. Reg. at 21,027, no genuine issue of material fact exists as to the prevailing wage applicable in this case.
Similarly, it is beyond dispute that Masonry Masters has amply demonstrated its ability to pay the prevailing wage of $ 7.50 in 1979. The 1979 W-2 form and Perdomo's affidavit as to the number of hours he worked in 1979, both of which Masonry Masters provided to supplement the record during the administrative appeal of this case, see Adm. Rec. at 33-34, showed that Masonry Masters paid Perdomo $ 7.50 per hour in 1979. Thus, while Masonry Masters' documentation may have been insufficient to establish its ability to pay Perdomo $ 10 per hour in 1979, the defendants correctly concede that Masonry Masters did pay him $ 7.50 in 1979. See Defendants' Opposition at 2. Thus, because the prevailing wage in 1979 was $ 7.50 per hour and because Masonry Masters clearly had the ability to pay that prevailing wage when it initiated the DOL certification process in 1979, the defendants' rejection of the plaintiffs' sixth-preference visa was an abuse of discretion.
B. INS' Inconsistent Decisions as to Perdomo and Del Cid
An alternative ground for this Court's reluctance to give broad deference to the INS in this case and the Court's holding that the defendants' abused their discretion is the inexplicable, irreconcilable inconsistency between their decision to reject Perdomo's visa petition and contemporaneously accept, under identical circumstances, Masonry Masters' petition on behalf of Del Cid. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 447 n. 30, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987) ("An additional reason for rejecting the Government's request for heightened deference . . . is the inconsistency of the positions the [Board of Immigration Appeals] has taken through the years. An agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is 'entitled to considerably less deference' than a consistently held agency view." (quoting Watt v. Alaska, 451 U.S. 259, 273, 68 L. Ed. 2d 80, 101 S. Ct. 1673 (1981)).
By denying Perdomo's and granting Del Cid's petition, the INS violated the rule that an agency may not make simultaneously inconsistent decisions without providing some explanation for the inconsistency. See, e.g., Hatch v. FERC, 210 U.S. App. D.C. 110, 654 F.2d 825, 834-35 (D.C. Cir. 1981) (agencies must provide reasoned explanation for failure to adhere to their own past rulings and practices); Greater Boston Television Corp. v. FCC, 143 U.S. App. D.C. 383, 444 F.2d 841, 852 (D.C. Cir. 1970) ("an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored"), cert. denied, 403 U.S. 923, 91 S. Ct. 2229, 29 L. Ed. 2d 701 (1971); Ohio Fast Freight, Inc. v. United States, 574 F.2d 316, 319 (6th Cir. 1978) (administrative agency must either conform its actions to its own previous general policies and precedents or explain its departure from them).
On this record, there is no doubt that Masonry Masters' ultimately unsuccessful application on Perdomo's behalf and its successful application on Del Cid's behalf were the same in every material respect. Both forms were filed on the same date in 1979 by the same employer for the same position of bricklayer; both forms contained almost identical information; and the DOL issued the requested certification for both applications on the same date in 1982.
Moreover, other DOL forms submitted on the same date in 1979 indicated that Del Cid and Perdomo were both El Salvador citizens, where they were bricklayer apprentices, and that Del Cid had 1.5 years, and Perdomo 2.5 years, of experience as a bricklayer.
On the same date in 1984, Masonry Masters submitted nearly identical sixth-preference visa petitions to the INS for Perdomo and Del Cid, and each petition in Item 25 put the INS on notice by cross-referencing the other, separately-filed petition.
Again on the same date later in 1984, the INS sent Masonry Masters identical letters requesting further information.
Providing the same type of information for both applications, Masonry Masters responded by sending the INS two letters (based on W-2 forms) summarizing its annual payments and deductions from 1979 to 1983 for Perdomo and from 1980 to 1983 for Del Cid.
On July 18, 1985 the INS approved the visa petition for Del Cid but, the very next day, without explaining the inconsistency, the INS rejected Perdomo's petition, concluding that Masonry Masters had not established its ability to pay the offered wage.
As the foregoing demonstrates, there is no genuine issue of material fact foreclosing the conclusion that the applications and supporting documentation on behalf of Perdomo and Del Cid were, for all practical purposes, identical. By reaching diametrically opposed results on the two applications without explaining the patent inconsistency,
the defendants acted arbitrarily and abused their discretion. See Contractors Transport Corp. v. United States, 537 F.2d 1160, 1162 (4th Cir. 1976) ("Patently inconsistent application of agency standards to similar situations lacks rationality and is arbitrary.").
The prevailing wage for bricklayers like Perdomo was $ 7.50 per hour in 1979, and Masonry Masters has clearly demonstrated its ability to pay Perdomo that wage. Moreover, without explanation, the INS acted completely inconsistently in approving Masonry Masters' visa petition for Del Cid but at the same time rejecting what was, in effect, an identical petition supported by the same underlying documentation for Perdomo. On these alternative grounds, the Court holds that INS abused its discretion. Thus, the Court will grant summary judgment for the plaintiffs and will order the defendants to approve the sixth-preference visa petition filed by Masonry Masters and Perdomo.
An Order in accordance with the foregoing Opinion will be issued of even date herewith.
ORDER -- July 17, 1990, Filed
In accordance with the Court's Opinion of even date herewith, it is, by the Court, this 16 day of July, 1990,
ORDERED that the Defendants' Motion for Summary Judgment shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that the Plaintiffs' Cross-Motion for Summary Judgment shall be, and hereby is, GRANTED; and it is
FURTHER ORDERED that the defendants abused their discretion and acted contrary to law in refusing to approve the plaintiffs' sixth-preference visa petition; and it is
FURTHER ORDERED that the defendants shall forthwith approve the plaintiffs' sixth-preference visa petition and issue Rigoberto Perdomo the appropriate visa.