decided as amended september 3 1974.: July 26, 1974.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Seitz, Chief Judge, and Van Dusen and Gibbons, Circuit Judges.
VAN DUSEN, Circuit Judge.
This case is an appeal from the district court's dismissal for lack of subject matter jurisdiction of a suit to compel the Secretary of Labor (the "Secretary") to bring an action to upset a union election under § 402(b) of the Labor-Management Reporting and Disclosure Act of 1959 ("L-MRDA"), 29 U.S.C. § 482(b).*fn1 The issue presented is whether the Secretary's decision not to bring such an action is subject to judicial review.
Plaintiff Walter Bachowski was a candidate for the office of District Director of District 20 of the United Steelworkers of America (the "USWA") in an election held on February 13, 1973. He was defeated in that election by 907 votes out of approximately 24,000 votes cast. After exhausting his administrative remedies within the union, Bachowski filed a complaint with the Department of Labor on June 21, 1973, alleging numerous election irregularities and violations of the union constitution and § 401 of the L-MRDA, 29 U.S.C. § 481. Following an investigation of this complaint, the Secretary notified Bachowski and the union that he had decided not to bring an action to set aside the contested election. Bachowski thereupon brought the present lawsuit, naming as defendants the Secretary and the union. The complaint alleges, inter alia, that the Secretary's investigation had substantiated the enumerated charges of election irregularities and that these irregularities affected the outcome of the election, but that the Secretary nevertheless refused to file a suit to set aside the election and failed even to inform Bachowski of his reasons for that refusal. The complaint concludes that these actions by the Secretary were arbitrary and capricious and requests that the district court direct the Secretary (1) to make available to the plaintiff all evidence he has obtained concerning his investigation of the contested election, (2) to reach an agreement with the union extending the period of time for filing suit to set aside that election, and (3) to file such suit.
The only jurisdictional allegations contained in the complaint are § 402 of the L-MRDA and § 10(a) of the Administrative Procedure Act (the "APA"), 5 U.S.C. § 702. This court has repeatedly held that the APA does not confer jurisdiction upon federal courts over cases not otherwise within their competence, Richardson v. United States, 465 F.2d 844, 849 n. 2 (3d Cir. 1972) (en banc), cert. denied, 410 U.S. 955, 35 L. Ed. 2d 688, 93 S. Ct. 1420 (1973); Zimmerman v. United States Government, 422 F.2d 326, 330-31 (3d Cir.), cert. denied, 399 U.S. 911, 26 L. Ed. 2d 565, 90 S. Ct. 2200 (1970); Operating Engineers Local 542 v. N.L.R.B., 328 F.2d 850, 854 (3d Cir. 1964). In addition, § 402 of the L-MRDA confers federal jurisdiction only over actions brought by the Secretary to challenge the conduct of a union election, 29 U.S.C. § 482(b). However, although not specifically alleged in the complaint,*fn2 we believe that 28 U.S.C. § 1337 provides a basis for federal jurisdiction in this case.*fn3 The L-MRDA is an "Act of Congress regulating commerce" within the meaning of § 1337, see § 2(c) of the L-MRDA, 29 U.S.C. § 401(c), and we believe that the instant case "arises under" that Act. Plaintiff's claim is founded directly on the L-MRDA in that he asserts a right, supported by his construction of § 402, to have the Secretary file a suit on his behalf to set aside the contested election where the evidence shows that violations occurred which affected its outcome and where the Secretary has not come forward with any valid reason for refusing to do so. Gully v. First National Bank, 299 U.S. 109, 112, 81 L. Ed. 70, 57 S. Ct. 96 (1936); Starin v. New York, 115 U.S. 248, 257, 29 L. Ed. 388, 6 S. Ct. 28 (1885). In a closely analogous case, we held that a suit by the business agent of a union local for injunctive relief and declaratory judgment that he was not barred by 29 U.S.C. § 504 from continuing in office was a case "arising under" the L-MRDA and that, therefore, there existed federal question jurisdiction pursuant to 28 U.S.C. § 1337. Serio v. Liss, 300 F.2d 386, 387-88 (3d Cir. 1961).*fn4
Our conclusion that the district court had federal question jurisdiction to entertain this case, however, does not resolve what is the underlying issue in this case: whether the Secretary's decision not to bring suit to upset a union election under § 402 of the L-MRDA is subject to judicial review. Although the district court's dismissal was technically for lack of subject matter jurisdiction, the record reveals that its action was based on a determination that such a decision by the Secretary is not reviewable.*fn5 Thus, in the interest of judicial economy, it is necessary to reach this issue on this appeal and decide, in effect, if plaintiff Bachowski has stated a claim upon which relief can be granted.
Plaintiff seems to be entitled to judicial review under the APA, 5 U.S.C. § 702, unless the Secretary's decision not to bring suit to set aside the election is excluded from the coverage of the APA by § 701(a),*fn6 which provides:
"This chapter applies, according to the provisions thereof, except to the extent that --
"(1) statutes preclude judicial review; or
"(2) agency action is committed to agency ...