PETZEL CASES

From 2002 until 2003, Randy Petzel oversaw the most hostile environment for Union Officers, Minority employees, H1-B Physicians , etc. at the Fargo VA.  Through his subordinate, Doug Kenyon, Petzel permitted the firing of three NFFE Officers and was compelled to testify in MSPB cases and other forums where it became clear he was at least tacitly involved in these removals and failed to properly investigate.  He is truly an anti union VA Leader.   Astonishingly, Petzel's name was forwarded and he was confirmed as the VA Undersecretary for Health.  Having damaged the lives of so many, Petzel now sits in Washington, DC as the Undersecretary for Health.   The selection of Petzel is not what a unionist thought President Obama would do after he promised so often to support Unions and the working people of this great Nation. 

 

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Petzel's Removals    NFFE VAC President, NFFE Local 225 President, NFFE Local 225 Vice President among others
Petzel's case history     H1-B violations, Fargo VA sanctioned, MSPB reinstatement, US DOL decisions, EEOC Decisions, etc.
Estimated cost of Petzel actions to the VA and tax payers, 1.5 Million dollars
Real cost to the fathers and mothers fired by Petzel and his cohorts -- incalculable.
More Articles and Depositions to be posted.

U.S. Department of Labor

 Administrative Review Board

200 Constitution Avenue, N.W.

Washington, D.C. 20210

USDOL/OALJREPORTER PAGE 1

In the Matter of:

RUDRANATH TALUKDAR and ARB CASE NO. 04-100

HARJINDER VIRDEE,

PROSECUTING PARTIES, ALJ CASE NO. 02-LCA-25

v. DATE: January 31, 2007

U.S. DEPARTMENT OF VETERANS

AFFAIRS, MEDICAL AND

REGIONAL OFFICE CENTER,

FARGO, NORTH DAKOTA,

RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Prosecuting Parties:

Beth E. Bertelson and Andrea R. Gesellchen, Bertelson Law Offices, P.A.,

Minneapolis, Minnesota.

For the Respondent:

Alan Duppler, Department of Veterans Affairs, Office of Regional Counsel,

Fargo, North Dakota.

FINAL DECISION AND ORDER

This case arises under the employee protection provision of the Immigration and

Nationality Act, as amended (INA), and its implementing regulations. 8 U.S.C.A. §

1182(n)(2)(C)(iv) (West 2007); 20 C.F.R. § 655.801 (2006). Doctors Rudranath

Talukdar and Harjinder Virdee brought a complaint against their former employer, the

Department of Veterans Affairs’ Medical Center and Regional Office in Fargo, North

USDOL/OALJREPORTER PAGE 2

Dakota (VAMC). A Department of Labor (DOL) Administrative Law Judge (ALJ)

determined that VAMC had discriminated against Talukdar and Virdee by ending their

employment because they had cooperated in a DOL investigation. VAMC has appealed.

We affirm the ALJ’s determination with regard to Talukdar’s claim.

Virdee settled her claim in April 2006. VAMC has submitted a Stipulation for

Dismissal seeking dismissal of VAMC’s appeal with regard to Virdee’s claim. The

Stipulation is signed by both Virdee and VAMC. Although the INA and its

implementing regulations contain no provision regarding settlement-based dismissal, we

have authority to dismiss VAMC’s appeal with regard to Virdee.

The Administrative Procedure Act (APA) provides that “[o]n appeal from or

review of the initial decision, the agency has all the powers which it would have in

making the initial decision.” 5 U.S.C.A. § 557(b) (West 2007). Before providing the

initial decision in an INA case, the ALJ may “permit negotiation of a settlement” and

may dismiss the case if the parties “[n]otify the [ALJ] that the parties have reached a full

settlement and have agreed to dismissal of the action.” 29 C.F.R. § 18.9(a), (c)(2) (West

2007). Because the ALJ may dismiss a settled case, and we have “all the powers” of the

ALJ, we may dismiss VAMC’s appeal with regard to Virdee’s claim if the settlement

between VAMC and Virdee is a full settlement and if VAMC and Virdee have agreed to

dismiss VAMC’s appeal.

VAMC and Virdee have represented that their settlement is a full settlement,

which resolves all outstanding issues between them. Further, VAMC and Virdee have

agreed that the “action” should “be dismissed.” Stipulation for Dismissal, at 1.

Therefore, VAMC’s settlement with Virdee meets the standards set forth in 29 C.F.R. §

18.9(c)(2), and we may dismiss VAMC’s appeal with regard to Virdee’s claim.

Our authority to dismiss this portion of VAMC’s appeal is discretionary, rather

than mandatory. But we believe such dismissal is appropriate here, for two reasons.

First, the settlement has rendered this portion of VAMC’s appeal moot. See U.S.

Bancorp Mortg. Co., v. Bonner Mall P’ship, 513 U.S. 18, 29 (1994) (recognizing

“mootness by reason of settlement”); see also Martin H. Redish & Adrianna D. Kastanek,

Settlement Class Actions, the Case-or-Controversy Requirement, and the Nature of the

Adjudicatory Process, 73 U. CHI. L. REV. 545, 592 (2006) (“There are a number of cases

in which the Court has dismissed a suit as nonadversarial due to settlement while appeal

was pending.”). We and our predecessors frequently have recognized not only our

authority, but also our preference, for dismissing a case or claim that has become moot.

See, e.g., Lane v. Roadway Express, Inc., ARB No. 03-006, ALJ No. 02-STA-38, slip op.

at 3 (ARB Feb. 27, 2004) (“Although administrative proceedings are not bound by the

constitutional requirement of a ‘case or controversy,’ the Board has considered the

relevant legal principles and case law developed under that doctrine in exercising its

discretion to terminate a proceeding as moot.”); Weeks Marine, Inc., No. 99-021, slip op.

at 2 (ARB Jan. 29, 1999) (“[W]e are under no obligation to render decisions in cases

where no relief can be granted.”). Although we are not required to dismiss on grounds of

mootness, doing so is our preferred option absent exceptional policy considerations. See,

USDOL/OALJREPORTER PAGE 3

e.g., Canteen Food & Vending Serv., No. 92-34, slip op at 2 (BSCA Nov. 30, 1992)

(dismissing petition as moot); PHCC Mech. Contractors of Fairbanks, Inc., No. 86-20,

slip op. at 3 (WAB Nov. 26, 1986) (“The Board prefers to have the issue presented in an

actual case or controversy.”); McGee Creek Project, Nos. 81-11 and 82-01, slip op at 9

(WAB Dec. 24, 1982) (“The Board does not intend to adopt the procedure of . . . issuing

a decision that is merely advisory. . . . The Board prefers to have the issue presented in a

live case or controversy.”)

Second, the INA and its implementing regulations contain no suggestion that we

should refrain from exercising our dismissal authority in the present situation. “If

Congress had intended a drastic juridical rule disallowing” dismissal due to settlement,

then “Congress would have stated it.” Nolder v. Raymond Kaiser Eng’rs, Inc., 1984-

ERA-5, slip op. at 3 (Sec’y June 28, 1985) (permitting complainant to withdraw

complaint). Nor is there any requirement in the INA or its implementing regulations that

we review the settlement agreement before dismissing this portion of VAMC’s appeal.

Cf. 29 C.F.R. §§ 1978.111(d)(2) (2006) (requiring, in Surface Transportation Act cases,

that ARB review terms of settlement agreement entered into while appeal is pending),

1979.111(d)(2) (same, Wendell H. Ford Aviation Investment and Reform Act for the 21st

Century), 1980.111(d)(2) (2007) (same, Section 806 of the Corporate and Criminal Fraud

Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act). Absent statutory or

regulatory instruction, we decline to engage in such review.

Therefore, we dismiss VAMC’s appeal as it relates to Virdee’s claim.1 We

review, and affirm, only those portions of the ALJ’s Decision and Order (D. & O.) that

relate to Talukdar’s claim. In so doing, we have reviewed the “complete hearing record”

developed before the ALJ, see 20 C.F.R. § 655.845(d), including evidence submitted with

regard to Virdee that sheds light upon Talukdar’s claim.

BACKGROUND

The INA permits employers in the United States to hire nonimmigrant alien

workers in specialty occupations including medicine. 8 U.S.C.A. § 1101(a)(15)(H)(i)(b).

These workers are commonly referred to as H-1B nonimmigrants. VAMC, a federal

health care facility administered by the United States Department of Veterans Affairs,

hired Talukdar, an H-1B nonimmigrant, as a primary care physician. Hearing Transcript

(T.) at 198. That appointment, which began April 1999, was for a three-year term ending

April 28, 2002. Id. at 284-86, 468-70. Talukdar’s appointment was characterized as

1 Because we are not “affirming the decision and order” of the ALJ with regard to

Virdee, that order remains inoperative as provided by 20 C.F.R. § 655.845(c). See, e.g.,

Pawlowski v. Hewlett-Packard Co., ARB No. 99-089, ALJ No. 97-TSC-3, slip op. at 4 n.3

(ARB May 5, 2000) (“Given that Hewlett-Packard’s timely appeal rendered the ALJ’s . . .

Recommended Decision and Order inoperative by law, 29 C.F.R. § 24.8(a), the parties’

request that we vacate the Recommended Decision and Order is moot.”).

USDOL/OALJREPORTER PAGE 4

“temporary” because he was hired under the authority of 38 U.S.C.A. § 7405(a)(1),

which allows the Department of Veterans Affairs to employ physicians “[o]n a temporary

full-time basis.” Agency Exhibit 2.

Talukdar reported to Dr. Ronald Johnson, VAMC’s Site Director for Primary

Care, who in turn reported to Dr. Ned Nichols, VAMC’s Chief of Staff and Chief of

Specialty Care. T. 55, 234, 236, 246, 254-255. Nichols reported to Douglas Kenyon,

VAMC’s Center Director. T. 464. Kenyon also was the Director of Surgical and

Specialty Care for the Veterans Administration Integrated Service Network, of which

VAMC was a part. Id. at 197-199, 464.

In May or June 2000, Talukdar began working on union matters at VAMC as a

union activist, advocate, and official. T. 237-238. Talukdar became deeply involved in

activities relating to pay inequities between H-1B nonimmigrant physicians and other

VAMC physicians. Id. Along with Robert E. Redding, the President of Local 225 of the

National Federation of Federal Employees (Local 225), the union which represented

VAMC physicians, Talukdar and Virdee were co-leaders of a physician pay study. Local

225 provided this study to VAMC officials sometime after its publication in January

2001. T. 12, 37, 38, 59, 60, 92-93, 105, 358-363.

In January 2001 the DOL’s Wage and Hour Division (WHD), in response to a

complaint filed by one of VAMC’s H-1B nonimmigrant physicians, began investigating

and auditing VAMC’s H-1B nonimmigrant physician pay practices. Administrator,

WHD, U.S. DOL v. Fargo VA Med. Ctr., ARB No. 03-091, ALJ No. 02-LCA-013, slip

op. at 3 (ARB Sept. 30, 2004); T. 94. Talukdar and Virdee participated in WHD’s

investigation, representing and advocating for the complainant physicians. T. 94, 160,

237-246, 253, 254, 471. By this time, Talukdar and Virdee both had become permanent

residents of the United States. T. 34 (Virdee), 227 (Talukdar).

Despite his union activities, Talukdar received praise and promotion from his

supervisors. His performance rating, which had been “High Satisfactory” in April 2000,

rose to “Outstanding” in the ratings given in April 2001 and April 2002. Claimant’s

Exhibits (CX) 31-33 (Talukdar’s rating reports).2 Further, in spring 2001 Johnson

promoted Talukdar to the position of leader of the Blue Team, a group of physicians and

other medical professionals working in primary care. T. 236, CX 38 at 2

(recommendation for two-step pay advancement based on Talukdar’s performance as

Blue Team leader); T. 250-51 (Talukdar testimony that Johnson made him leader of the

Blue Team in approximately June 2001).3

2 There is no information in the record as to when the April 2002 report was prepared.

3 The date of the promotion, and its precise approving officials, are not clear.

Johnson’s memo contains the typed date “April 6, 2001,” but “April” is crossed out and

“Sept.” is handwritten over it. CX 38 at 2. The handwritten initials “RJ” appear near this

change, presumably reflecting Johnson’s initials. Id. There seems to have been an internal

delay in the processing of Johnson’s recommendation. On August 15, 2001 Redding eUSDOL/

OALJREPORTER PAGE 5

Johnson also recommended Talukdar for “a special advancement for performance

. . . step increase of 15-4 to a 15-6.” CX 38 at 2. In support of his recommendation,

Johnson noted that “Dr. Talukdar has done well since taking over the difficult leadership

role of the Blue Team and has also been active in promoting advanced clinical access

principles. These have been formidable tasks and while there is work to do, significant

progress has been made.” Id. Nichols approved the recommendation. Id. 4

At around the same time, Kenyon approved the award of specialty pay to

Talukdar. T. 142, 283, 284-286, 290, 468-470, 483-484; CX 41 (Special Pay Agreement

effective July 1, 2001). The VA is authorized to award specialty pay in order to recruit

and retain physicians in disciplines where there is a shortage of personnel. See 38

U.S.C.A. § 7431 (West 2007) (authorizing specialty pay); see also T. 224 (Talukdar’s

testimony that VAMC had “a chronic shortage of primary care physicians”). Talukdar’s

specialty pay took effect on July 1, 2001. CX 41.

Then, on March 20, 2002, the WHD Administrator made public her determination

that VAMC had violated the INA’s H-1B provisions by failing to pay the applicable

prevailing wage to ten H-1B nonimmigrant physicians. The Administrator ordered

VAMC to pay these physicians back wages totaling in excess of $200,000.00. CX 9.5

VAMC became the subject of unfavorable publicity and media reports, including an

April 26, 2002 article in a local newspaper. T. 100, 273-74, 484.

Talukdar testified that “as the months went by” from March into May 2002, he

and Virdee were subjected to increasing hostility by their supervisors and other VAMC

officials and staff. T. 293-295. The public hostility peaked at a May 9, 2002 meeting,

during which VAMC supervisors, officials, and staff were “extremely hostile”towards

Talukdar and Virdee. T. 297-310. At this meeting Talukdar and Virdee, who both had

been asked by VAMC to serve as members of a by-law revision team, proposed revisions

to VAMC’s by-laws dealing with internal governance and assignment of medical duties.

mailed Johnson stating, “As the PCPSL Site Director it is your call to promote Rudy

[Talukdar] the 2 steps and all that need be done, as I understand it, is a form 50 or 52

highlighting your reasons. . . . I feel bad for Dr. Talukdar and I have been mis advising [sic]

him by telling him all was fine.” Id. at 1. Johnson replied, “It was my screw up actually.

We will get it fixed.” Id. Neither Nichols nor Johnson testified at the hearing.

4 Nichols indicated his approval by circling the word “APPROVED” and signing his

name. CX 38 at 2. The date of Nichols’s signature is not clear. Id.

5 VAMC requested a hearing. On March 27, 2003, a DOL ALJ granted the

Administrator’s motion for summary decision. U.S. DOL v. Fargo Med. Ctr., 2002-LCA-13,

ALJ slip op. at 6 (ALJ Mar. 27, 2003). VAMC appealed, and we affirmed. See Fargo VA

Med. Ctr., ARB slip op. at 1.

USDOL/OALJREPORTER PAGE 6

T. 297-299. An e-mail from Johnson, sent the day after this meeting as an “open letter”

to VAMC staff, illustrates the hostility that Talukdar felt. Johnson’s e-mail stated:

I firmly believe that this self gov [sic] nonsense is not the

reason, but [merely] cover. There’s a very small group of

people here at this facility who have a very different agenda

than the rest of us. I think that this group sees itself as

above everyone else here, and that the rest of us exist to

serve them . . . Revenge is clearly a motive, and what

happened yesterday was in many ways pay-back for past

perceived slights to their egos. If the goal of yesterday[’s]

action was to cause anger, resentment and create division

among people, they have succeeded beyond their wildest

dreams.

I really don’t care who reads this. I also don’t give a darn

about [Equal Employment Opportunity] complaints or

[Unfair Labor Practices.] I may set the world records for

both. If you agree with me forward this to your friends. If

you think I am wrong, print this off and use it against me

any way you want.

Joint Exhibit 1. Talukdar testified that the hostility, as evidenced by the meeting and by

Johnson’s “open letter,”was so bad that he was “afraid to go back” to work. T. 310, 311.

After the meeting, Talukdar took sick leave. T. 311. Because he was then notified of the

end of his employment, Talukdar did not return to work.

In the weeks leading up the May 9 meeting, VAMC’s leadership made several

decisions affecting Talukdar. We describe them in the order in which they were

communicated to Talukdar:

First, Johnson informed Talukdar, without explanation, that he would not receive

the second step of the promised two-step pay increase. T. 250-270. Talukdar then

resigned as leader of the Blue Team. Id. at 270.

Second, Kenyon extended Talukdar’s appointment from April 28, 2002 to June

30, 2002. Agency Exhibit 2 (Notification of Personnel Action effective April 28, 2002).

Kenyon testified that he had extended the appointment so that Talukdar would not have

to repay any of his specialty pay. As Kenyon explained it, Talukdar otherwise would

have been liable for such repayment when his employment ended because he would not

have worked a full year from the specialty pay’s effective date of July 1, 2001. T. 142,

284-286, 290, 468-470, 483-484.

Third, Kenyon decided to end Talukdar’s employment. T. 271-73, 464, 467-468,

483. Kenyon sent Talukdar a memo dated May 1, 2002, which notified Talukdar of the

USDOL/OALJREPORTER PAGE 7

“[t]ermination of employment.” CX 40; T. 483.6 The memo noted that Talukdar’s

“temporary appointment” would expire on June 30, 2002, and stated that the appointment

would not be renewed “[d]ue to the current budget deficit.”CX 40; T. 272, 273, 464,

467-468. Talukdar asked Johnson for an explanation, telling Johnson that he suspected

the termination was due to his union activities. T. 273. According to Talukdar, Johnson

replied: “I know you will think that as long as you live, but that [i.e., budget] is the reason

I am going to give you.” Id.

Kenyon also ended Virdee’s employment as a staff psychiatrist in VAMC’s

primary care section. T. 272, 273, 464, 467-468, 470, 483. Virdee had worked

extensively with Talukdar and Redding on union issues, including the pay inequity issue,

and there had been several altercations between Virdee and various VAMC officials. D.

& O. at 7, 9-16, 19. Kenyon informed Virdee of the termination by sending a memo

dated May 10, 2002, which she received May 13, 2002. D. & O. at 17; CX 6. The memo

stated that Virdee’s temporary appointment would be “terminated effective close of

business on June 6, 2002” – more than two months before her appointment otherwise

would have ended. Id.7 The memo explained that Virdee’s “services in the Primary Care

Patient Service Line [we]re no longer needed.” Id. A subsequent memo clarified that

Virdee’s dismissal was based on “budget matters.”CX 7.

Despite his expressed concerns about VAMC’s budget, Kenyon did not end the

employment of any other VAMC physicians. (Indeed, in the previous decade, no primary

care physician other than Talukdar had been dismissed for budgetary reasons. T. 474-

476.) Nor did Kenyon take other significant cost-cutting measures, although he did shift

funds from VAMC’s capital account to its operating account and obtain a loan from the

Network “to get us through the end of the fiscal year.” T. 475. “[T]here was a balance

shown at the very end,”which the network “took . . . back since they also had other

shortfalls.” T. 475. In addition, after ending Talukdar’s and Virdee’s employment

Kenyon hired a psychiatrist for the Fargo location and a primary care physician for the

community-based outpatient clinic in Grand Forks, while an acting director approved the

hiring of an interior decorator. T. 147, 149, 158, 166-175, 198-200, 447-450, 452-454,

456-57, 461-462, 575, 578, 584-585, 588; D. & O. at 7 (“VAMC is also responsible for

administering several community-based outpatient clinics, including one in Grand

Forks.”). VAMC sought permission to hire a psychiatrist on May 24, 2002, indicating on

the application that the period of employment would begin July 1, 2002. D. & O. at 19.

VAMC hired the psychiatrist on September 16, 2002, before the end of the 2002 fiscal

year. Id.

6 Although Talukdar did not begin his sick leave until after the May 9, 2002 meeting,

he did not receive Kenyon’s May 1, 2002 memo until May 15. Nothing in the record

explains this delay.

7 The D. & O. contains more information about VAMC’s treatment of Virdee at 6-19.

USDOL/OALJREPORTER PAGE 8

Meanwhile, on June 3, 2002 Redding had filed a complaint with DOL on behalf

of Talukdar and Virdee. Redding alleged that VAMC had “terminated”the employment

of Talukdar and Virdee because of their “cooperation with [DOL’s] investigation of pay

inequities at the Fargo VA[MC].” Complaint at 1. The WHD Administrator investigated

the complaint and found no violation of the INA. Administrator’s July 25, 2002

Determination, at 1. Talukdar and Virdee requested a hearing, and an ALJ found in their

favor.

The ALJ found that Talukdar and Virdee had engaged in activities protected by

the INA’s employee protection provision, that VAMC had taken adverse action against

Talukdar and Virdee, and that VAMC’s proffered reason, its budget deficit, was “not

believable” and was a pretext for retaliation. The ALJ awarded various forms of relief,

including reinstatement and back pay. As permitted under 20 C.F.R. § 655.845, VAMC

timely petitioned for our review.

JURISDICTION AND STANDARD OF REVIEW

Under the INA’s employee protection provision, a covered employer must not

“intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner

discriminate against an employee because the employee . . . has disclosed information . . .

that . . . evidences a violation of [the H-1B requirements,] or because the employee

cooperates . . . in an investigation or other proceeding concerning the employer’s

compliance with the [H-1B] requirements.” 8 U.S.C. § 1182(n)(2)(C)(iv). The Board

has jurisdiction to review ALJ decisions enforcing this provision. See id.; 20 C.F.R. §§

655.700(a)(4) (INA enforcement system as administered by DOL), 805(a)(13) (DOL

investigations of alleged violations of INA’s employee protection provision), 655.820

(ALJ hearings), and 655.845 (ARB review of ALJ decisions); Secretary’s Order No. 1-

2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002), § 4(c)(18) (Delegation of Authority and

Assignment of Responsibility to the Administrative Review Board) (giving ARB

authority to review ALJ decisions “as provided for or pursuant to . . . 8 U.S.C. §

1182(n)”).

The Board reviews only those aspects of the ALJ decision that are specified in the

petition for review and listed in the Board’s notice of review. See 20 C.F.R. §§

655.845(b)(3), (e)(1). Whether the specified issues are questions of law or questions of

fact, the Board has the authority to review specified issues de novo. See 5 U.S.C.A. §

557(b) (“On appeal from or on review of the initial decision, the agency has all the

powers which it would have in making the initial decision except as it may limit the

issues on notice or by rule.”); see also Innawalli v. Am. Info. Tech. Corp., ARB No. 04-

165, ALJ No. 04-LCA-13, slip op. at 6 (ARB Sept. 29, 2006) (standard of review is de

novo); Administrator v. Jackson, ARB No. 00-68, ALJ No. 1999-LCA-4, slip op. at 3

(ARB Apr. 30, 2001) (standard of review is de novo). No factual issues have been

specified for review in this case. Therefore, in addressing the issues presented, we rely

upon the facts found by the ALJ.

USDOL/OALJREPORTER PAGE 9

ISSUES PRESENTED

1. Was Talukdar covered by the INA’s employee protection provision?

2. Did the ALJ err in concluding that VAMC had retaliated against

Talukdar?

3. Did the ALJ err in ordering reinstatement?

DISCUSSION

VAMC does not dispute the ALJ’s conclusion that Talukdar’s participation in

DOL’s investigation and audit of VAMC’s nonimmigrant physician pay practices under

the H-1B program constituted protected activity.8 VAMC also does not take issue with

the ALJ’s implicit but necessary conclusion that VAMC knew of Talukdar’s

participation. Nor does VAMC dispute that Kenyon’s decision to end Talukdar’s

employment constituted adverse action.

VAMC does take issue with the ALJ’s conclusion that Talukdar was covered by

the INA’s employee protection provision. VAMC also argues that the evidence did not

establish retaliation on VAMC’s part and that, in any case, reinstatement is not an

appropriate remedy.9 We discuss VAMC’s arguments in turn.

Coverage

To support its contention that Talukdar is not covered by the INA’s employee

protection provision, VAMC points out that Talukdar was appointed to his job at VAMC

pursuant to 38 U.S.C.A. § 7405(a)(1), which authorizes appointments “without regard to

civil service or classification laws, rules, or regulations.” Brief at 3. VAMC then asserts,

without discussion or citation, that the INA is a “civil service” law. Id. at 5. In VAMC’s

view, “since [Talukdar and Virdee] were Federal Employees, [the INA’s whistleblower

protection provision’s] application to them can be seen as a form of civil service law.”

Id. at 3. Because civil service laws do not apply to employees hired under 38 U.S.C.A. §

7405(a)(1), VAMC would have us conclude that the INA’s employee protection

provision does not apply to Talukdar. Id. at 5. Talukdar argues that the INA is not a

8 VAMC stipulated at the hearing that Talukdar and Virdee had advocated on behalf of

allegedly underpaid H-IB nonimmigrant physicians at VAMC and had participated in DOL’s

investigation and audit of VAMC’s pay practices. T. 244-245.

9 VAMC withdrew a fourth issue raised in its Petition for Review. Brief at 5.

USDOL/OALJREPORTER PAGE 10

“civil service” law, because it “is part of Title 8 . . . [and] Title 8 does not involve civil

service laws.”Response at 6 & n.3.

VAMC’s position founders because it offers no support for its proposition that the

INA’s whistleblower provision is a “civil service” law. VAMC does cite decisions

holding that the Whistleblower Protection Act (WPA) and the “Title 5 Reduction in

Force (RIF) law” do not apply to persons appointed under § 7405. But these decisions

were based upon conclusions that the WPA and Title 5’s RIF provision were civil service

laws. See, e.g., Beckstrom-Parcell v. Dep’t of Veterans Affairs, 91 M.S.P.R. 656, 658

(June 25, 2002) (“Title 5 RIF procedures . . . are part of the civil service laws”); Chan v.

Dep’t of Veterans Affairs, 53 M.S.P.R. 617, 620 (Apr. 21, 1992) (holding WPA not

applicable to Veterans Administration (VA) employees, citing Orloff v. Cleland, 708

F.2d 372, 376 (9th Cir. 1983) (“[T]he Veterans Preference Act [VPA] falls within the

category of ‘civil service laws’”) (abrogated by statute)).

Though we need not define the exact contours of civil service laws in order to

determine whether the INA’s whistleblower provision is such a law, it seems likely that

civil service laws apply to – and only to – persons in the civil service. For example, the

WPA, the VPA, and Title 5’s RIF provision all are placed in Title 5 of the United States

Code and apply only to federal employees. See also Horner v. MSPB, 815 F.2d 668, 671

(Fed. Cir.1987) (“The placement of § 1206(e)(1)(D) within Title 5, its enactment as part

of the CSRA [Civil Service Reform Act], and its bearing on civil servants demonstrate

that § 1206(e)(1)(D) is a civil service law.”); Orloff, 708 F.2d at 376 n.4 (“It may be that

all laws codified in Title 5 are not included in th[e] definition [of the term ‘civil service

laws’]”). In contrast, the INA applies to every “employee” of every “employer that has

an employment relationship with H-1B . . . nonimmigrants.” 20 C.F.R. § 655.715 (2006)

(further defining employer as “a person, firm, corporation, contractor, or other

association or organization in the United States”). Thus, the INA applies not only to

persons employed by the federal government, but also to those employed by all other

covered employers.

Moreover, VAMC has cited no law or decision supporting its assertion that the

INA’s whistleblower protection provision is a civil service law or can be deemed to be

one when it is applied to federal employees. We are aware of no such law, and relevant

precedent suggests otherwise. See, e.g., King v. Lynch, 21 F.3d 1084, 1089 (Fed. Cir.

1994) (“discrimination laws . . . applicable to federal employers [but with] broader

application [as well,] are not themselves civil service laws”).

Because VAMC has not convinced us that the INA is a “civil service” law, the

“without regard” provision in 38 U.S.C.A. § 7405(a)(1) does not authorize VAMC to act

without regard to the INA’s provisions. Thus, those provisions apply to VAMC.

Under those provisions, any “employee” of a covered “employer” is a covered

employee. See 20 C.F.R. § 655.715. We previously have concluded that VAMC is a

covered employer. Fargo VA Med. Ctr., slip op. at 5 (VAMC was “employer” under the

INA’s H-1B provisions); see also Administrator, WHD, U.S. DOL v. Dallas VA Med.

USDOL/OALJREPORTER PAGE 11

Ctr., ARB Nos. 01-077, 01-181, ALJ No. 98-LCA-03, slip op. at 4-5 (ARB Oct. 30,

2003) (Dallas VAMC was “employer” under H-1B provisions of INA). VAMC does not

ask us to reconsider that holding, nor does VAMC argue that Talukdar was not an

employee as defined in the INA. Therefore, Talukdar is a covered employee and is

protected by the employee protection provision of the INA.

Retaliation

VAMC’s fallback argument is that the ALJ erred in finding that it discriminated

against Talukdar because of his protected activities.10 VAMC’s arguments focus upon

the ALJ’s treatment of the evidence relating to temporal proximity and pretext. Brief at

6-8. Talukdar, of course, argues that the ALJ correctly concluded from the evidence that

VAMC had retaliated. Response at 9-24.

A. Temporal Proximity

VAMC first argues that the ALJ erroneously inferred evidence of causation from

her view that there was “proximity in time between events.” Brief at 7.11 Pointing out

that Talukdar’s involvement in the pay inequity issue began in 2000, some two years

before VAMC ended Talukdar’s employment in 2002, VAMC argues that important

events occurred before the sequence of events highlighted by the ALJ, and that this

longer timeframe is less suggestive of retaliation. Id. at 6-8.

Talukdar argues that the ALJ’s reasoning was correct, and we agree. The ALJ

acknowledged that Talukdar’s protected activity began in mid-2000, but the ALJ

concluded that “the H-1B issue truly came to the forefront at the VAMC” upon the

issuance of the WHD Administrator’s March 20, 2002 determination that VAMC had

10 Absent congressional indication that a different standard applies, we have found that

an employer acts “because of” protected activity when the employer is “motivated” by that

activity. See Lopez v. Serbaco, Inc., ARB No. 04-158, ALJ No. 04-CAA-5, slip op. at 4 n.6

(ARB Nov. 29, 2006) (discussing ARB’s use of motivating factor standard unless Congress

has indicated that a different standard applies). Although Congress has specified a

“contributing factor” standard in the Energy Reorganization Act (ERA), 42 U.S.C.A. § 5851

(West 2003), the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century,

49 U.S.C.A. § 42121 (West Supp. 2005), and the Sarbanes-Oxley Act, 18 U.S.C.A. § 1514A

(West Supp. 2005), Congress has not made any such specification in the INA. Thus, we

apply a “motivating factor” standard in reviewing the ALJ’s determination that VAMC acted

“because of” protected activity.

11 The ALJ found that “the sequence of events representing the crux of this case

transpired over a period of less than two months” starting with the Administrator’s March 20,

2002 determination that VAMC had violated the H-1B pay provisions, and ending with

Kenyon’s May 1 memo “terminating” Talukdar’s employment. D. & O. at 20.

USDOL/OALJREPORTER PAGE 12

violated the H-1B pay provisions of the INA, and the adverse publicity that ensued in

April 2002. D. & O. at 10, 21-23. VAMC does not dispute the ALJ’s finding that

Kenyon’s late April 2002 decision to end Talukdar’s employment came soon after these

two events. Indeed, Kenyon’s decision to extend Talukdar’s appointment – effective

April 28, 2002 –demonstrates that Kenyon already had decided to end the appointment,

because the extension otherwise would not have been needed. (Talukdar would have

stayed at VAMC, hence he would have worked through July 1, and hence he would not

have needed to repay any specialty pay.) Thus, the proximity noted by the ALJ supports

a conclusion that retaliation motivated the decision.

B. Pretext

VAMC next argues that in concluding that its budget deficit was a pretext, the

ALJ erred by mis-emphasizing facts and by relying upon irrelevant evidence. Brief at 6-

9. Talukdar again argues that the ALJ did not err, and we again agree.

VAMC first contends that the ALJ should not have found relevant “the fact that

the Medical Center hired a staff psychiatrist shortly after dismissing Dr. Virdee, and

began advertising for a primary care physician shortly after Dr. Talukdar’s appointment

was not renewed,” because there also was “direct testimony [from Kenyon] that neither

Dr. Talukdar’s position nor Dr. Virdee’s was filled behind them.”Id. at 7. But we see no

error in the ALJ’s conclusion that VAMC’s hiring of personnel, during the same period

that it released Talukdar and Virdee, constituted evidence that VAMC had not been as

concerned about the budget as it had claimed. The ALJ certainly was not required to

believe Kenyon’s testimony simply because it was “direct.”

VAMC further contends that the ALJ erroneously based her conclusions upon

incidents “unrelated to the H-1B audit.” Id. In VAMC’s view, these “unrelated”

incidents included the “salary dispute between Dr. Talukdar and Dr. Johnson.” Id. But –

assuming that by this “dispute” VAMC means to refer to the two-step increase that never

happened – the evidence easily could be understood to suggest that while the delay of the

increase was due to error, its ultimate denial was due to discrimination. Thus we see no

error in the ALJ having relied upon that evidence to support her finding of

discrimination.

VAMC then contends that the ALJ should not have relied upon evidence showing

“discontent” among VAMC’s staff. Brief at 8. As VAMC sees it, although “the fact that

both [Talukdar and Virdee] were also two of the more ‘discontented’ may have made the

selection easier,” such discontent was not the basis for their selection. Rather, they “were

carrying the smallest workloads, so they were the logical ones to let go.”Id. But VAMC

fails to mention – and did not list as an issue for appeal –the ALJ’s finding that “the

record is clear that [Talukdar] was carrying his weight” of the workload, “as he did have

the highest per hour figure, and . . . the number of patients in his panel . . . was within the

range of the other doctors in primary care.” D. & O. at 18 n.15. In light of this finding,

we are not inclined to believe VAMC’s explanation that Talukdar had the “smallest”

workload. (Kenyon had testified that he chose Talukdar for termination because

USDOL/OALJREPORTER PAGE 13

Talukdar’s appointment was due to expire and his workload could be redistributed. T.

272, 273, 464, 467-469. But VAMC does not repeat these two arguments upon appeal –

perhaps because neither of these factors distinguished Talukdar from VAMC’s other

physicians, including the more junior physicians whose appointments were renewed. T.

438-446, 474-476.).

VAMC also does not take issue with the ALJ’s findings that VAMC ended Fiscal

Year 2002 with a budget surplus; that VAMC had a budget deficit in the year it hired

Talukdar and Virdee, D. & O. at 21; and that ending Talukdar’s and Virdee’s

employment had constituted a departure from VAMC’s decade-long practice of renewing

all temporary appointments.

In sum, VAMC has given us no persuasive reason to diverge from the ALJ’s clear

and cogent reasoning. Having reviewed the entire record, we agree with the ALJ that

Kenyon’s stated reason for ending Talukdar’s employment, the budget deficit, was not

believable. Because VAMC has not provided any other reason why we should not affirm

the ALJ’s conclusion that VAMC retaliated against Talukdar, we affirm that conclusion

and proceed to VAMC’s arguments concerning the appropriate remedies.12

Reinstatement

The ALJ ordered VAMC to reimburse Talukdar $4,500 for moving expenses he

incurred in leaving Fargo upon the end of his employment with VAMC, and to offer him

reinstatement with the same salary and benefits as if there had been no gap in his service.

12 Pursuant to our normal practice, a copy of this decision will be sent to the WHD

Administrator. Under the INA and its implementing regulations, the Administrator is

responsible for notifying the Department of Homeland Security (DHS) when DOL has

determined that an employer has violated the INA’s employee protection provision. See 8

U.S.C.A. § 1182(n)(2)(C)(ii)(II) (“If the Secretary [of Labor] finds . . . a . . . violation of

clause (iv) . . . the Attorney General shall not approve petitions filed with respect to that

employer . . . during a period of at least 2 years.”); 20 C.F.R. §§ 655.810(d) (“The

Administrator shall notify the DHS . . . that the employer shall be disqualified from approval

of any petitions filed by . . . the employer . . . for . . . [a]t least two years for violation(s) of

any of the provisions specified in paragraph (b)(2).”); 810(b)(2)(iii) (“Discrimination against

an employee”), 655.855 (“The Administrator shall notify the DHS and ETA of the final

determination of any violation requiring that the DHS not approve petitions filed by an

employer.”). For the avoidance of doubt, we note that neither the ALJ nor the Board has the

authority to waive this disqualification sanction. See Cyberworld Enter. Techs., Inc. d/b/a

Tekstrom, Inc. v. Administrator, WHD, U.S. DOL, ARB No. 04-049, ALJ Case No. 03-LCA-

17 (ARB May 24, 2006) (noting mandatory nature of disqualification sanction for any

covered employer found to have committed listed violations of INA). Therefore, we have no

authority to review the ALJ’s advisory view, see D. & O. at 26, that disqualifying VAMC

would be inappropriate.

USDOL/OALJREPORTER PAGE 14

D. & O. at 26-27. The ALJ specified that if Talukdar accepted the offer of reinstatement,

VAMC was to pay him moving expenses to return to Fargo, allow him to contribute to

his retirement plan(s) for the period covered by the back wages, and pay him back wages

and benefits from June 30, 2002 until the date he resumed employment. If Talukdar

declined the offer of reinstatement, VAMC would have to pay him back wages and

benefits up to the date he did so. Id at 27.

VAMC does not take issue with the ALJ’s order regarding moving expenses, but

argues that reinstatement is not an appropriate remedy. Petition for Review at 1-2; Brief

at 9, 10.

VAMC also alludes to its disagreement with the ALJ’s award of back pay,

arguing that “if the appointments have expired there can be no back pay.” Reply at 2.13

This latter argument has been waived. (Forfeited might be a more accurate term. See

United States v. Olano, 507 U.S. 725, 731-33 (1993) (“Whereas forfeiture is the failure to

make the timely assertion of a right, waiver is the ‘intentional relinquishment or

abandonment of a known right.’”) (citation omitted).) Under the INA’s implementing

regulations, a petition for review of an ALJ’s decision must “[s]pecify the issue or issues

stated in the administrative law judge decision and order giving rise to such petition” and

“[s]tate the specific reason or reasons why the party petitioning for review believes such

decision and order are in error.” 20 C.F.R. § 655.845(b)(2), (3). VAMC did not raise

any argument regarding back pay in its petition for review. The ARB’s Notice accepting

VAMC’s petition for review did not include back pay as an issue. Notice of Intention to

Review, at 1, 2. VAMC did not alert the ARB that the Notice had omitted any issue, nor

did VAMC raise the back pay issue in its opening brief. Because VAMC failed to

comply with the requirements of 20 C.F.R. § 655.845(b)(2) and (3), and did not raise an

argument regarding back pay in time to allow Talukdar or Virdee to respond, we

conclude that VAMC has waived this argument.

With regard to reinstatement, VAMC points out that Talukdar’s appointment has

expired, and asserts that only the VA has authority to make new appointments under 38

U.S.C. § 7405. Brief at 9. In VAMC’s view, “Talukdar’s position” is “gone” and thus

“there are no positions open for reinstatement.”Id. at 10. Based on this view, VAMC

argues that “[i]f the ALJ’s order stands, it will have the effect of creating [a] position[]

that do[es] not currently exist, and will convert a temporary appointment to a permanent

one. The ALJ has no authority to do either.” Id. VAMC does not argue that the Board

has no reinstatement authority; rather, VAMC’s argument is limited to the contention that

reinstatement is impossible here because Talukdar’s position has “expired . . . . There is

nothing to reinstate him to.”Reply at 2.

Talukdar counters that reinstatement is authorized by the INA, and that it is

appropriate in this case. Response at 25-27.

13 VAMC sent a letter “in lieu of formal rebuttal.” We construe this as VAMC’s Reply.

USDOL/OALJREPORTER PAGE 15

VAMC has failed to persuade us that Talukdar’s position is “gone.” Brief at 10.

VAMC continues to employ physicians to provide primary care. Cf. Doyle v. Hydro

Nuclear Servs., Inc., No. 89-ERA-22, slip op. at 7-8 (ARB Sept. 6, 1996) (excusing

reinstatement as “impossible or impractical” where employer’s successor company no

longer engaged workers in the job classification occupied by complainant and had no

positions for which complainant qualified). Where reinstatement is ordered but the

complainant’s former position no longer exists, the employer generally must offer the

complainant reinstatement to “a substantially equivalent position in terms of duties,

functions, responsibilities, working conditions, and benefits.” Agbe v. Texas S. Univ.,

ARB No. 98-072, ALJ No. 97-ERA-13, 1999 WL 566971, at *21 (ARB July 27, 1999)

(requiring employer to offer reinstatement to equivalent position, where complainant’s

former position had been abolished).14 VAMC has not argued that Talukdar’s position

was unique, or that substantially equivalent positions are not available.

That Talukdar held a limited term appointment is not in itself a bar to

reinstatement. As discussed above, VAMC did not dispute that it regularly renewed

limited term appointments. Cf. Blackburn v. Metric Constructors, Inc., 1986-ERA-4

(Sec’y Oct. 30, 1991) (reversing order reinstating electrician because evidence developed

on remand showed that company’s other electricians had been terminated at conclusion

of project with no expectation of continued employment).

Under the INA, “the Administrator may impose such other administrative

remedies as the Administrator determines to be appropriate, including but not limited to

reinstatement of workers who were discriminated against in violation of § 655.805(a) . . .

or other appropriate legal or equitable remedies.” 20 C.F.R. § 655.810(e)(2). We believe

that reinstatement is “appropriate” in this case. When a violation of an employee

protection provision has been found, we generally seek to make the employee whole

insofar as feasible and authorized. See, e.g., Amtel Group, Inc. v. Yongmahapakorn,

ARB No. 04-087, ALJ No. 04-LCA-6, slip op. at 12 (ARB Sept. 29, 2006) (awarding

interest on backpay, despite lack of express authorization in INA, because whistleblower

provision was “remedial” and goal of backpay award was to make complainant whole);

Kutty, slip op. at 12 (INA’s employee protection provision should be interpreted with

reference to other DOL-administered whistleblower protection provisions); Hobby v.

Georgia Power Co., ARB Nos. 98-166/169, ALJ No. 1990-ERA-30, slip op. at 7 (ARB

Feb. 9, 2001) (noting that “reinstatement is . . . a ‘make-whole’ remedy . . . intended to

14 We recognize that reinstatement is a mandatory remedy under the employee

protection provision of the Energy Reorganization Act of 1974 (ERA). See 42 U.S.C.A. §

5851(b)(2)(B) (West 1995). But the INA’s whistleblower provision is sufficiently similar to

the ERA’s that we can draw guidance for INA reinstatement from ERA reinstatement

decisions. See U.S. DOL v. Kutty, ARB No. 03-022, ALJ Nos. 01-LCA-010 through 01-

LCA-025, slip op. at 12-13 (ARB May 31, 2005) (quoting 65 Fed. Reg. 80,178 (2000) to

support conclusion that ARB “in interpreting and applying INA’s [employee protection

provision] should be guided by the well-developed principles that have arisen under the

various whistleblower protection statutes that have been administered by” DOL).

USDOL/OALJREPORTER PAGE 16

return the complainant to the position that he . . . would have occupied but for the

unlawful discrimination,” and finding Title VII reinstatement orders to be relevant

guidance in ERA whistleblower cases); Albemarle Paper Co. v. Moody, 422 U.S. 405,

418-21 (1975) (discussing make-whole purpose of Title VII).

Contrary to VAMC’s assertion, Reply at 2, our order does not go beyond a makewhole

purpose and require VAMC to appoint Talukdar to a “permanent” position. We

order only that VAMC return Talukdar to the situation he would have occupied absent

VAMC’s discrimination – i.e., the situation he would have occupied had his appointment

been renewed. Thus, once it has reinstated Talukdar to a temporary position, VAMC will

have fulfilled its obligations under this order.15

Because VAMC has offered no other reason why we do not have authority to

order reinstatement, or should refrain in this case, we affirm the ALJ’s order of

reinstatement.16

Attorney’s Fees

Talukdar seeks attorney’s fees for his costs on appeal. Response at 27. Under

the American Rule, however, courts generally do not award fees to a prevailing party

absent explicit statutory authority. See Buckhannon Bd. & Care Home, Inc. v. West Va.

Dep’t of Health and Human Res., 532 U.S. 598, 602 (2001) (in United States parties

ordinarily required to bear own attorney’s fees; prevailing party is not entitled to collect

fees from loser); Key Tronic Corp. v. United States, 511 U.S. 809, 819 (1994) (following

American Rule, Court “adhere[s] to a general practice of not awarding fees to a

prevailing party absent explicit statutory authority”); Alyeska Pipeline Serv. Co. v.

Wilderness Soc’y, 421 U.S. 240, 247-262 (1975) (tracing origins and development of the

American Rule). The INA does not provide for the recovery of attorney’s fees, and

Talukdar has provided no reason why we should not follow the general rule in his case.

Therefore, we conclude that Talukdar is not entitled to recover such fees.

CONCLUSION

Because Virdee and VAMC have settled, we dismiss VAMC’s appeal relating to

Virdee’s claim. Because Talukdar is covered by the employee protection provision of the

INA, VAMC violated that provision by ending Talukdar’s employment in retaliation for

15 If VAMC subsequently discriminates against Talukdar under circumstances

suggesting that it is again penalizing Talukdar for his INA-protected activities, Talukdar may

again seek redress under the Act.

16 Although Talukdar has moved from North Dakota to Texas, he has not indicated that

he no longer wishes reinstatement. VAMC has no obligation to find Talukdar a position

elsewhere, although VAMC is free to attempt settlement with Talukdar by doing so.

USDOL/OALJREPORTER PAGE 17

his cooperation with DOL’s investigation, and Talukdar’s reinstatement is appropriate,

we AFFIRM the ALJ’s decision with respect to Talukdar, and ORDER that VAMC

comply with the remedies ordered by the ALJ.

SO ORDERED.

A. LOUISE OLIVER

Administrative Appeals Judge

M. CYNTHIA DOUGLASS

Chief Administrative Appeals Judge

 

 

Fargo VA Medical Center, Administrator's Response Brief

ADMINISTRATIVE REVIEW BOARD

UNITED STATES DEPARTMENT OF LABOR

WASHINGTON, D.C.

 

IN THE MATTER OF:

 

FARGO VA MEDICAL CENTER,         ARB Case No. 03-091

                                               ALJ Case No. 02-LCA-13

Petitioner,

v.

ADMINISTRATOR, WAGE & HOUR

DIVISION, EMPLOYMENT

STANDARDS ADMINISTRATION,

U.S. DEPARTMENT OF LABOR,

 

Respondent.

ADMINISTRATOR’S RESPONSE BRIEF

 

 

HOWARD M. RADZELY

Acting Solicitor of Labor

 

STEVEN J. MANDEL

Associate Solicitor

Fair Labor Standards Division

 

WILLIAM C. LESSER

Deputy Associate Solicitor

 

PAUL L. FRIEDEN

Counsel for Appellate Litigation

 

CAROL B. FEINBERG

Attorney

U.S. Department of Labor

200 Constitution Ave., N.W.

Suite N2716

Washington, D.C. 20210

(202) 693-5555

TABLE OF CONTENTS

ISSUES PRESENTED

STATEMENT OF THE CASE

A. Course of Proceedings

 

B. Statement of Facts

 

C. The ALJ’s Decision

ARGUMENT

THE DOL HAS JURISDICTION TO DETERMINE WHETHER FARGO VAMC MUST COMPLY WITH THE PREVAILING WAGE REQUIREMENTS OF THE H-1B PROGRAM, AND FARGO VAMC IS SUBJECT TO THOSE REQUIREMENTS.

 

A. Standard of Review

 

B. Statutory and Regulatory Framework

 

C. DOL has jurisdiction to determine whether the Fargo VAMC must comply with the prevailing wage requirements of the H-1B program

 

D. Fargo VAMC is subject to and must comply with the wage requirements of 8 U.S.C. 1182(n) (1)(A), when as a participant in the H-1B program, it files LCAs to employ non-immigrant physicians

CONCLUSION

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

Cases:

Administrator, Wage and Hour Division v. Dallas Veterans’ Affairs Medical Center, 1998-LCA-00003 (June 19, 2001), appeals docketed, Nos. 01-077, 01-081 (ARB, July 18 and 19, 2001)
Administrator, Wage and Hour Division v. Native Technologies, Inc., ARB Case No. 98-034, 1999 WL 377285, (ARB May 28, 1999)
Alvarez v. Department of Veterans Affairs, 49 M.S.P.R. 682 (M.S.P.B. 1991)
American Federation of Government Employees, AFL-CIO, Local 3884 v. Federal Labor Relations Authority, 930 F.2d 1315 (8th Cir. 1991)
Colorado Nurses Association v. Federal Labor Relations Authority, 851 F.2d 1486 (D.C. Cir. 1988)
Hanlin v. United States, 214 F. 3d 1319 (Fed. Cir. 2000)
Matter of Hunter Holmes McGuire Veterans Affairs Medical Center, 94-INA-00210, 1996 WL 616606 (Bd. Alien Lab. Cert. App., Oct. 7, 1996)
Morton v. Mancari, 417 U.S. 535 (1974)
National Federation of Federal Employees Local 589 v. Federal Labor Relations Authority, 73 F. 3d 390 (D.C. Cir. 1996)
Sugrue v. Derwinski, 26 F.3d 8 (2d Cir. 1994), cert. denied, 515 U.S. 1102 (1995)
Traynor v. Turnage, 485 U.S. 535 (1988)
U.S. Dept. of Labor v. Alden Management Services, Inc., ARB Case Nos. 00-020; 00-021 (Aug. 30, 2002)
U.S. Dept. of Labor v. Beverly Enterprises, Inc., ARB Case No. 99-050 (July 31, 2002)

 

Statutes:

5 U.S.C. 2105(f)

5 U.S.C. 7101

 

28 U.S.C. 1491(a)(1)

28 U.S.C. 1746

 

Administrative Procedure Act, 5 U.S.C. 557(b)

 

American Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”), Title IV of Pub. L. No. 105-277, 112 Stat. 2681 (October 21, 1998)

 

Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (November 25, 2002)

 

Immigration Act of 1990 (“IMMACT”), Pub. L. No. 101-649, 104 Stat. 4978

 

Immigration and Nationality Act

 

8 U.S.C. 1101(a)(15)(H)(i)(b)

8 U.S.C. 1182

8 U.S.C. 1182(a)(5)(A)

8 U.S.C. 1182(j)(2)

8 U.S.C. 1182(j)(2)(A)

8 U.S.C. 1182(j)(2)(B)

8 U.S.C. 1182(n)

8 U.S.C. 1182(n)(1)

8 U.S.C. 1182(n)(1), unmarked paragraph

8 U.S.C. 1182(n)(2)

8 U.S.C. 1182(n)(1)(A)

8 U.S.C. 1182(n)(2)(A)

8 U.S.C. 1182(n)(2)(D)

8 U.S.C. 1182(p)

8 U.S.C. 1184(i)(1)

 

Immigration Nursing Relief Act of 1989, (“INRA”), 8 U.S.C. 1182(m)

 

Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, (“MTINA”), Pub. L. No. 102-232, 105 Stat. 1733

 

Rehabilitation Act of 1973, 29 U.S.C. 794

 

Tucker Act, 28 U.S.C. 1491(a)(1)

 

Whistleblower Protection Act

 

United States Office of Special Counsel, Merit Systems Protection Board: Authorization, Pub. L. No. 103-424, (1994) 108 Stat. 4361

 

Veterans Health Administration

 

38 U.S.C. 211(a)

38 U.S.C. 511

38 U.S.C. 511(a)

38 U.S.C. 4108(a)

38 U.S.C. 4119

 

38 U.S.C. Chapter 74

 

38 U.S.C. 7421

38 U.S.C. 7422

38 U.S.C. 7422(d)(3)

38 U.S.C. 7425(b)

38 U.S.C. 7433

38 U.S.C. 7433(b)(3)(A)

38 U.S.C. 7433(b)(6)

38 U.S.C. 7439

38 U.S.C. 7439(a)

 

 

 

Code of Federal Regulations:

 

20 C.F.R. 655, Subparts H and I

20 C.F.R. 655

20 C.F.R. 655.700

20 C.F.R. 655.700(a)(3)

20 C.F.R. 655.715

20 C.F.R. 655.731

20 C.F.R. 655.731(a)(2)

20 C.F.R. 655.731(d)

20 C.F.R. 655.731(d)(2)

20 C.F.R. 655.731(d)(2)(i)

20 C.F.R. 655.740(c)

20 C.F.R. 655.805

20 C.F.R. 655.810

20 C.F.R. 655.845

20 C.F.R. Part 656

 

 

Legislative History

S. Rep. No. 96-747, 96th Cong. 2nd Sess. (1980) reprinted in 1980 U.S.C.C.A.N. 2463, 2467

H.R. Conf. No. 101-955, 101st Cong., 2nd Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6787, 1990 WL 201613

H.R. Rep. No. 106-692, 106th Cong. 2nd Sess. (2000), 2000 WL 825659

H.R. Rep. No. 106-1048, 106th Cong., 2d Sess. (2001), 2001 WL 67919

 

Federal Register

65 Fed. Reg. 80110 (December 20, 2000)

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ADMINISTRATIVE REVIEW BOARD

UNITED STATES DEPARTMENT OF LABOR

WASHINGTON, D.C.

 

IN THE MATTER OF:

 

FARGO VA MEDICAL CENTER,         ARB Case No. 03-091

                                               ALJ Case No. 02-LCA-13

Petitioner,

v.

ADMINISTRATOR, WAGE & HOUR

DIVISION, EMPLOYMENT

STANDARDS ADMINISTRATION,

U.S. DEPARTMENT OF LABOR,

 

Respondent.

ADMINISTRATOR’S RESPONSE BRIEF

Pursuant to the Administrative Review Board’s (“Board” or “ARB”) Order dated May 20, 2003, the Administrator of the Wage and Hour Division (“Administrator”) submits her brief seeking affirmance of the Decision and Order (“D & O”) of Chief Administrative Law Judge John M. Vittone (“ALJ”), dated March 27, 2003.[1] This matter arises under the Immigration and Nationality Act (“INA” or “the Act” or “Immigration Act”) H-1B visa program, 8 U.S.C. 1101(a)(15)(H)(i)(b) and 1182(n), and the implementing regulations at 20 C.F.R. 655, Subparts H and I.[2]

ISSUES PRESENTED

(1) Whether the Department of Labor has jurisdiction to determine whether the Fargo VA Medical Center is subject to and must comply with the wage requirements of 8 U.S.C. 1182(n)(1)(A).

(2) If the Board has such jurisdiction, whether the Fargo VA Medical Center is subject to and must comply with the wage requirements of 8 U.S.C. 1182(n)(1)(A) when, as a participant in the H-1B program, it files Labor Condition Applications (“LCAs”) to enable it to employ non-immigrant physicians.

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STATEMENT OF THE CASE

 A. Course of Proceedings

The Department of Veterans Affairs Medical Center in Fargo, North Dakota (“Fargo VAMC” or “hospital”) employed ten non-immigrant physicians under the H-1B visa program, beginning in 1999 and 2000. (Administrator’s Brief in Support of Summary Judgment (“Admin. Br.”), Stipulation (“Stip.”) 1, 2, 26, 56).[3] After the doctors began working for the Fargo VAMC under the H-1B program, the DOL’s Wage and Hour Division (“Wage-Hour”) received a complaint and conducted an investigation. On February 1, 2001, Wage-Hour notified the Fargo VAMC that its documentation of the prevailing wage failed to conform with the regulatory criteria (Stip. 13; Admin. Br. Exhibit (“Exh.”) E). The correct State Employment Security Agency (“SESA”) prevailing wage determinations were provided by DOL to the Fargo VAMC.[4] (Stips. 12, 13; Exh. C, D, E).

On February 14, 2001, pursuant to 20 C.F.R. 655.731(d)(2), the Fargo VAMC appealed the prevailing wage determinations to DOL’s Employment and Training Administration (“ETA”) (Stip. 14; Exh. F). On June 7, 2001, ETA denied the appeal and offered the Fargo VAMC an opportunity to request a hearing before DOL’s Office of Administrative Law Judges (Stip. 15; Exh. G). The Fargo VAMC requested a hearing, and on January 23, 2002, the ALJ issued a final ruling under 20 C.F.R. 655.731(d) concluding that the SESA rates are the correct prevailing wage rates (Stip. 16; Exh. H).[5]

Wage and Hour completed its investigation and, on March 20, 2002, issued a determination letter finding that the Fargo VAMC failed to pay wages as required in violation of 20 C.F.R. 655.731. (Stip. 17; Exh. I).[6] Specifically, the doctors were paid less than the applicable prevailing wage (Stips. 19, 20, 57). The Fargo VAMC appealed the determination on grounds that it is not subject to the H-1B prevailing wage requirements (Exh. J). The Administrator and Fargo VAMC stipulated to material facts, including the back wage computations and the fact that the SESA-determined rates are the applicable prevailing wage rates under the H-1B program (Stips. 16, 19-22, 57-59; Exh. C, D, K, X). Back wages totaled $212,449.14 as of February 16, 2002 (Stip. 59). In June 2002, the parties filed cross-motions for summary judgment. On March 27, 2003, the ALJ ruled in the Administrator’s favor and ordered the Fargo VAMC to pay the doctors back wages totaling $212,499.14.[7]

B. Statement of Facts

Prior to hiring each doctor, the Fargo VAMC submitted an LCA to ETA. On the LCA, the Fargo VAMC identified itself as the employer of the doctor, and checked the box “to indicate that the employer will comply with” the following statement:

H-1B nonimmigrants will be paid at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question or the prevailing wage level for the occupation in the area of employment, whichever is higher.

(Stips. 3, 4; Exh. A-1 through A-10, items 1-5, item 8, box (a)) (emphases in original). Fargo VAMC Hospital Director Douglas M. Kenyon also signed the following attestation on the LCAs:

DECLARATION OF EMPLOYER. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the information provided on this form is true and correct. In addition, I declare that I will comply with the Department of Labor regulations governing this program, and, in particular, that I will make this application, supporting documentation, and other records, files and documents available to officials of the Department of Labor, upon such official’s request, during any investigation, under this application of the Immigration and Nationality Act.

(Exh. A-1 through A-10, item 9) (emphasis added).

The Fargo VAMC also submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Immigration and Naturalization Service (“INS”) with respect to each of the doctors (Stip. 5; Exh. B-1 through B-10). The Fargo VAMC is identified as the employer on the I-129s (Stip. 6; Exh. B-1 through B-10, Parts 1 and 5). Hospital Director Kenyon signed the following attestation on each petition:

By filing this petition, I agree to the terms of the labor condition application for the duration of the alien’s authorized period of stay for H-1B employment.

(Exh. B-1 through B-10, Supplement to Form I-129, Section 1).

Mr. Kenyon made the following statement in the H-1B petition extension letter filed on behalf of Dr. Belamkar, one of the ten doctors at issue:

We are an established and responsible United States employer, maintaining an unbroken record of full compliance to all immigration requirements. Certainly, this policy will apply fully to our employment of Dr. Belamkar.

(Exh. W-2).

The Fargo VAMC does not dispute that it paid the ten doctors less than the applicable prevailing wage rate (Stips. 16, 19-22, 57-61; Exh. C, D, K, L-1 through L-10, X, Y). The Fargo VAMC also admits that the applicable prevailing wage rates are below the maximum that a Department of Veterans Affairs (“DVA”) physician could be paid under 38 U.S.C. Chapter 74 (“the VA statute”) (Stip. 49). Specifically, nine of the ten prevailing wage rates were either $124,280 or $124,446 per year, and one was $165,000 per year (Stip. 19). Although the doctors were hired at pay rates ranging between $101,788 and $117,846 annually, the Fargo VAMC had the discretion to pay the doctors a maximum salary of $170,000 per year through February 14, 2001, and up to $190,000 per year beginning February 15, 2001 (Stips. 20, 39, 42; Exh. L-1 through L-10).[8]

The physicians’ annual rates were computed by combining a base pay based on a government scale, along with “Special Pay” authorized under the VA statute (Stip. 24a).[9] One component of Special Pay is that up to $17,000 per year may be authorized for physicians working in a geographic location in which there are recruitment problems; the Fargo VAMC had the discretion to approve this amount (Stips. 27, 43; Exh. L-1 through L-10, P, p. 3B-App. D-1). Another is that up to $40,000 per year may be authorized for physicians working in medical specialties with respect to which there are recruitment or retention difficulties (“scarce specialty pay”); the Fargo VAMC had the discretion to approve this amount, too (Stips. 27, 43; Exh. L-1 through L-10, P, p. 3B-App. F).[10] Scarce medical specialties may be authorized on a nationwide basis or on a facility-specific basis (Exh. P, p. 3B-App. F-1).[11]

Although the Fargo VAMC had the discretion to pay the doctors up to $17,000 in geographic pay and $40,000 in scarce specialty pay, it did not pay these maximum amounts to any doctor at issue here, except for Dr. Mehdi (a hematologist/oncologist), who received $17,000 geographic pay but no scarce specialty pay (Stips. 25, 29, 43; Exh. L-1 through L-10). One doctor received no geographic pay and the others were paid between $3,000 and $10,000 of such pay (Stip. 25, 29; Exh. L-1 through L-10). Three doctors received no scarce specialty pay and the others were paid between $8,000 and $17,809. Id.

Additionally, the Fargo VAMC had the discretion to start the doctors at a higher pay grade and step than those at which they were started (Stip. 41). Specifically, the base pay rates for the ten doctors ranged from a low of $77,361 for GS-15 step 3, to a high of $90,549 for GS-15 step 6, even though the GS-15 grade has ten steps, and there are two higher grades, which have ten and nine steps, respectively (Stip. 24a,b,c; Tables at Exh. A-1, A-2, A-3, A-10, O; L-1 through L-10).[12]

C. The ALJ’s Decision

The ALJ held that DOL has jurisdiction to review whether an H-1B employer has paid the prevailing wage (“D & O” 6-7). Specifically, by filing the LCAs and taking advantage of the H-1B program, the Fargo VAMC voluntarily subjected itself to such jurisdiction and review. In addition, the ALJ concluded that the VA statute’s collective bargaining provision is inapplicable to this case, and does not prohibit DOL from reviewing whether the Fargo VAMC complied with the H-1B prevailing wage regulations.

The ALJ also held that the Fargo VAMC is an employer under the H-1B regulations (D & O 4-5). In reaching this conclusion, the ALJ rejected the Fargo VAMC’s argument that, as an agency of the United States, it cannot qualify as an employer under 20 C.F.R. 655.715, which defines employer to include “a person, firm, corporation, contractor, or other association or organization in the United States.” 20 C.F.R. 655.715 (emphases added). The ALJ concluded that the DVA’s status as an executive department of the United States does not exclude it from coverage (D & O 4). The ALJ also rejected the argument that the VA hospital is inherently different from other H-1B hospital-employers because it serves only a select group of the general population (D & O 5). To the contrary, the VA hospital shares many characteristics with other hospital-employers, such as employing physicians to practice medicine at its facility and paying their salaries. Id.

Most significantly in this regard, the ALJ stated that the Fargo VAMC acknowledged its status as an employer under the H-1B regulations when it filed the LCAs on behalf of the doctors (D & O, p. 5). Hence, the Fargo VAMC “is not entitled to reap the benefits of the H-1B program without shouldering the burden of compliance with the requirements of that program. It cannot utilize certain H-1B regulations while at the same time claim exemptions from others. Accordingly, Respondent is an employer under the regulations.” Id.

The ALJ also rejected other exemption arguments presented by the Fargo VAMC. For instance, the Fargo VAMC claimed that it is exempt from paying the prevailing wage because it subscribes to a Federal wage schedule (D & O 6). The ALJ disagreed, citing an analogous Board of Alien Labor Certification Appeals case involving a VA hospital (D & O 6). Fargo VAMC also argued that by approving the LCA, DOL approved the wage listed on the LCA by the hospital. Id. The ALJ disagreed, noting that under 20 C.F.R. 655.740(c), DOL’s approval of the LCA is not an endorsement of the wages listed therein. Id. The ALJ also rejected the argument that paying the prevailing wage to H-1B doctors would force the Fargo VAMC to violate the civil rights of U.S. doctors who are paid less than the prevailing wage (D & O 7). Specifically, stated the ALJ, the hospital could have used its Special Pay authorization to pay all physicians the prevailing wage, without distinguishing between physicians of different national origin. In fact, the VA statute encourages the payment of rates comparable to those paid in the private sector. In sum, the ALJ concluded that the Fargo VAMC voluntarily chose to participate in the H-1B program and therefore must comply with the requirements of that program. Id.[13]

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ARGUMENT

 

 

THE DOL HAS JURISDICTION TO DETERMINE WHETHER THE FARGO VAMC MUST COMPLY WITH THE PREVAILING WAGE REQUIREMENTS OF THE H-1B PROGRAM AND THE FARGO VAMC IS SUBJECT TO THOSE REQUIREMENTS

A. Standard of Review

The Board reviews the ALJ’s findings of fact and legal conclusions de novo. See U.S. Dept. of Labor v. Alden Management Services, Inc., ARB Case Nos. 00-020; 00-021 (Aug. 30, 2002); U.S. Dept. of Labor v. Beverly Enterprises, Inc., ARB Case No. 99-050 (July 31, 2002). See also 5 U.S.C. 557(b) (“On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except it may limit the issues on notice or by rule.”).

B. Statutory and Regulatory Framework

The H-1B visa program is a voluntary program that permits employers to temporarily secure and employ nonimmigrants to fill specialized jobs in the United States. See INA, 8 U.S.C. 1101(a)(15)(H)(i)(b). The INA requires that an employer pay an H-1B worker the higher of its actual wage or the locally prevailing wage. See 8 U.S.C. 1182(n)(1)(A). The prevailing wage provisions safeguard against the erosion of U.S. workers’ wages and moderate any economic incentive or advantage in hiring temporary foreign workers. See, e.g., H.R. Rep. No. 106-692, at *12 (2000) (discussion of DOL’s 1996 Office of Inspector General report). Under the INA, as amended by the Immigration Act of 1990 (“IMMACT”), Pub. L. No. 101-649, 104 Stat. 4978, and the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (“MTINA”), Pub. L. No. 102-232, 105. Stat. 1733, an employer seeking to hire an alien in a specialty occupation,[14] or as a fashion model of distinguished merit and ability, must seek and get permission from the DOL before the alien may obtain an H-1B visa from the State Department.[15] Specifically, the statute requires an employer seeking to employ an H-1B worker to submit an LCA to the DOL. See 8 U.S.C. 1182(n)(1).

In filing the LCA with the Department, the employer attests that:

    (A) The employer -

        (I) is offering and will offer [the H-1B worker] during the period of authorized employment . . . wages that are at least -

            (I) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or

            (II) the prevailing wage level for the occupational classification in the area of employment,

    whichever is greater, based on the best information available as of the time of filing the application.

8 U.S.C. 1182(n)(1)(A) (emphases added). The statute requires DOL to certify the application within seven days unless it is incomplete or contains “obvious inaccuracies.” 8 U.S.C. 1182(n)(1), unmarked paragraph preceding 8 U.S.C. 1182(n)(2). Only after the employer receives the Department’s certification of its LCA, may the Bureau of Citizenship and Immigration Services (“BCIS”)[16] approve an H-1B petition seeking authorization to employ a specific nonimmigrant worker. See 8 U.S.C. 1101(a)(15)(H)(i)(b); 20 C.F.R. 655.700(a)(3).

The statute also prescribes a framework for enforcement proceedings and sanctions, directing the Department to

 establish a process for the receipt, investigation, and disposition of complaints respecting a petitioner’s failure to meet a condition specified in an application submitted under [this Act] or a petitioner’s misrepresentation of material facts in such an application. Complaints may be filed by any aggrieved person or organization (including bargaining representatives). . . . The Secretary shall conduct an investigation under this paragraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred.

8 U.S.C. 1182(n)(2)(A). The Department has promulgated regulations which provide detailed guidance regarding the determination, payment, and documentation of the required wages. See 20 C.F.R. 655.700 et seq. The remedies for violations of the statute or regulations include payment of back wages to H-1B workers who were underpaid. See 8 U.S.C. 1182(n)(2)(D); 20 C.F.R. 655.810.

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C. DOL has jurisdiction to determine whether the Fargo VAMC must comply with the prevailing wage requirements of the H-1B program.

1.    The INA provides DOL with the jurisdiction to determine whether H-1B employers like Fargo VAMC must comply with the prevailing wage requirements. Specifically, the INA requires the Secretary of Labor to establish a process for investigation and disposition of complaints under the H-1B program, and requires the Secretary to order an employer that has not paid the required wage to pay back wages. See 8 U.S.C. 1182(n)(2)(A),(D).[17] In this case, Fargo VAMC voluntarily decided to participate in the H-1B program which vests DOL with jurisdiction to resolve complaints. Fargo VAMC signed the LCAs which state in bold lettering that “[c]omplaints alleging . . . failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor,” and the hospital signed a declaration that it “will comply with Department of Labor regulations governing this program.” (Exh. A-1 through A-10). Fargo VAMC also certified on the visa petitions that it “agree[s] to the terms of the labor condition application.” (Exh. B-1 through B-10).

The Fargo VAMC proposes that DOL’s enforcement of the prevailing wage provisions of the INA against the VA “is an attempt by another agency to review salary determinations made by the Secretary of the Department of Veterans Affairs.” (Fargo brief (“br.”), p. 4). To the contrary, DOL is not reviewing the DVA’s compensation determinations; rather, DOL is reviewing whether the Fargo VAMC complied with its voluntary certification under the INA that it would pay the doctors at least the actual or prevailing wage, whichever is greater. The case of Hanlin v. United States, 214 F.3d 1319 (Fed. Cir. 2000) is instructive in this regard. Hanlin involved the DVA’s contention that it cannot be subject to the jurisdiction of the Court of Federal Claims for breach of contract under the Tucker Act at 28 U.S.C. 1491(a)(1) because the DVA statute at 38 U.S.C. 511(a) provides the VA with exclusive jurisdiction over the contract claim. The court held that DVA’s interpretation would in effect repeal 28 U.S.C. 1491(a)(1), and that repeal by implication is disfavored unless two statutes are irreconcilable:

[W]hen two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.

Hanlin, 214 F. 3d at 1321 (citing Morton v. Mancari, 417 U.S. 535 at 551 (1974)). As discussed in greater detail infra, the VA statute is totally consistent with the prevailing wage provisions of the INA.[18]

2.    Fargo VAMC argues that DOL lacks jurisdiction because 38 U.S.C. 7421 of the VA statute provides the Veterans Affairs Secretary with the sole authority to determine the hours, conditions of employment, and leaves of absence for individuals hired under Title 38 (Fargo br., p. 3). In support, the hospital cites Colorado Nurses Association v. Federal Labor Relations Authority, 851 F.2d 1486 (D.C. Cir. 1988), in which the court held that the VA is not required to engage in collective bargaining pursuant to 5 U.S.C. 7101, because of the VA’s exclusive authority to prescribe working conditions of medical employees. However, the court noted that the “exclusivity” provision[19] does not preclude the VA from choosing to negotiate about particular matters. Id. at 1491. Subsequent to the decision in Colorado Nurses, the Eighth Circuit ruled that the Fargo VAMC used its authority, despite the exclusivity provision, to voluntarily enter into a collective bargaining agreement with the union, and thereby subjected itself to the jurisdiction of the Federal Labor Relations Authority (“FLRA”):

 

In short, there is nothing in the [DVA] statute which conflicts with the FLRA’s assertion of jurisdiction over a collective bargaining agreement the VA has voluntarily agreed to abide by.

American Federation of Government Employees, AFL-CIO, Local 3884 v. Federal Labor Relations Authority, 930 F.2d 1315, 1327-29 (8th Cir. 1991). Similarly, in this case, the Fargo VAMC exercised its authority and voluntarily signed the LCAs and petitions, thereby subjecting itself to DOL’s jurisdiction.

3.    The Fargo VAMC also contends that “the [VA] statute has even been found to preclude coverage of the Whistleblowers Protection Act for doctors,” and cites Alvarez v. Department of Veterans Affairs, 49 MSPR 682 (M.S.P.B. 1991), in support (Fargo br. p. 3). Alvarez, relied on 38 U.S.C. 4119 (now codified at 38 U.S.C. 7425(b)), which precludes any provision of Title 5 or law pertaining to the civil service system that is inconsistent with any provision of the VA statute from superseding, overriding, or modifying the VA statute, unless the law specifically provides that the VA provision may be superseded, overridden, or modified. Unlike the INA, however, the Whistleblower Protection Act is codified in Title 5. Id. at 685-86 n. 6. Furthermore, the INA is consistent with the VA statute, which, in fact, encourages and provides for payment of the prevailing wage. See discussion infra. Finally, since Alvarez, the law has been amended to provide whistleblower coverage to DVA physicians. See United States Office of Special Counsel, Merit Systems Protection Board: Authorization, Pub. L. No. 103-424, Section 7 (1994), codified at 5 U.S.C. 2105(f).[20]

4.    The Fargo VAMC inexplicably argues in the same vein that 38 U.S.C. 7422(d)(3) precludes DOL from enforcing the prevailing wage in this case (Fargo br. p. 4). The statute at 38 U.S.C. 7422 is entitled "Collective Bargaining." This section of the VA statute permits employees to engage in collective bargaining pursuant to Title 5, but does not allow collective bargaining over, among other things, the establishment, determination, or adjustment of employee compensation. Specifically, 38 U.S.C. 7422(d)(3) provides that "[a]n issue of whether a matter or question concerns or arises out of . . . (3) the establishment, determination or adjustment of employee compensation under [Title 38] shall be decided by the Secretary [of Veterans Affairs] and is not subject to collective bargaining and may not be reviewed by any other agency." Subsection (d)(3), therefore, provides the Veterans Affairs Secretary with authority to determine whether the matter arises out of the establishment, determination, or adjustment of employee compensation, and the Secretary’s decision on this matter is not subject to collective bargaining or review. See National Federation of Federal Employees Local 589 v. Federal Labor Relations Authority, 73 F.3d 390, 393 (D.C. Cir. 1996) (“§7422 deals only with collective bargaining rights, however defined.”) Simply put, the instant case does not involve the issue of collective bargaining.

5.    In sum, Fargo VAMC has not put forward any argument that would deny DOL jurisdiction over the issue of whether Fargo VAMC has met the prevailing wage requirements of the INA, something that is uniquely within DOL’s province.

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D. Fargo VAMC is subject to and must comply with the wage requirements of 8 U.S.C. 1182(n)(1)(A) when, as a participant in the H-1B program, it files LCAs to employ non-immigrant physicians.

1. As held in Administrator, Wage and Hour Division v. Native Technologies, Inc., ARB Case No. 98-034, 1999 WL 377285, at *6 (ARB May 28, 1999), a party’s status as “H-1B employer” under the INA exists by operation of law:

As the intended employer. . . Native Technologies’ filing of [the LCA and INS petition] was the necessary precondition for the INS’s issuance of [complainant’s] H-1B visa; in other words, if Native Technologies had not represented that it would employ [complainant] for the period stated on the LCA, [complainant] would not have been permitted to enter the country on the H-1B visa.

Indeed, the Fargo VAMC acknowledged its status as an employer on both the LCAs and the visa petitions, each of which required specific information to be completed by the “employer,” and contained a detailed description of the employer’s obligations (Stips. 4, 6; Exh. A-1 through A-10, B-1 through B-10). Fargo VAMC also told the INS in an H-1B extension letter filed on behalf of one of the doctors that “[w]e are an established and responsible United States employer, maintaining an unbroken record of full compliance to all immigration requirements.” (Exh. W-2). Without the filing and approval of the LCAs and the visa petitions, and absent representing that it was an employer and that it would comply with the attestation requirements, the Fargo VAMC could not have hired the doctors. Fargo VAMC should not be permitted to now claim that it is not an “employer” under the Act and therefore is not subject to the prevailing wage requirements.

The case of U.S. Dept. of Labor v. Alden Management Services, Inc., ARB Case Nos. 00-020; 00-021 (Aug. 30, 2002) is instructive in this regard. There, the Board reviewed an analogous claim under the Immigration Nursing Relief Act of 1989, 8 U.S.C. 1182(m) et seq. (“INRA”), in which the employer was given permission to hire nonimmigrant nurses after filing required attestations with the Department of Labor and petitions with INS. The employer failed to pay the nurses the prevailing wage as required by INRA. The employer claimed that it did not meet the definitional requirement necessary to be covered by INRA (i.e., that it was a “facility”), so that DOL had no authority to enforce back wages under the statute. In rejecting this argument, the Board noted that since the employer secured the benefits of the Act -- the permission for alien registered nurses to provide services as its employees -- it was estopped from denying that it was a facility (Alden at page 8). Similarly, Fargo VAMC should not be permitted to avail itself of the H-1B program by holding itself out as an employer, and then deny that status (and coverage) when it is found to be in violation of the prevailing wage requirements.

2. Moreover, contrary to Fargo VAMC’s argument on appeal, the statutory definition of “employer” covers the Fargo VAMC. The 1995 DOL regulations define “employer” as “a person, firm, corporation, contractor, or other association or organization in the United States:

(1) Which suffers or permits a person to work within the United States;

 

(2) Which has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee; and

 

(3) Which has an Internal Revenue Service tax identification number.”

20 C.F.R. 655.715 (1995).

The 2001 regulations define employer as “a person, firm, corporation, contractor, or other association or organization in the United States which has an employment relationship with H-1B nonimmigrants and/or U.S. worker(s). The person, firm, contractor, or other association or organization in the United States which files a petition on behalf of an H-1B nonimmigrant is deemed to be the employer of that nonimmigrant.” 20 C.F.R. 655.715.

As noted earlier, the violations occurred during the effective period of both regulations. It is undisputed that Fargo VAMC meets the functional regulatory criteria under both sets of regulations, i.e., that it suffers or permits the doctors to work, that it has the authority to hire, pay, fire, supervise or otherwise control the work of the doctors, and that it has an Internal Revenue tax identification number (Stips. 7-9). The Fargo VAMC has an employment relationship with the doctors and filed the INS petitions on their behalf (Stips. 4-7; Exh. A-1 through A-10, B-1 through B-10).

Fargo VAMC, however, contends that it is not an employer within the meaning of the INA because it is an executive department of the United States and not, as prescribed in the regulations, “a person, firm, corporation, contractor, or other association or organization in the United States.” (Fargo br. pp. 5-6). There is nothing in the INA that limits the definition of “employer” as Fargo VAMC advocates. The fact that the VA is an executive department of the United States is not mutually exclusive with the fact that it is an organization in the United States. Indeed, Congress clearly intended the H-1B program to apply to Federal executive agencies. For example, pursuant to 8 U.S.C. 1101(a)(15)(H)(i)(b), the H-1B provisions apply to “alien[s] subject to [8 U.S.C.] 1182(j)(2).” Section 1182(j)(2) refers, in turn, to an “agency in the United States” as a permissible H-1B employer of alien medical school graduates.[21] Additionally, 8 U.S.C. 1182 was amended by the ACWIA to provide a specific method for computing the prevailing wage under the H-1B program for employees of “a Governmental research organization.” See Section 415 of Title IV of Pub. L. No. 105-277, 112 Stat. 2681 (Oct. 21, 1998), as codified in 8 U.S.C. 1182(p). If government agencies could not be employers, Congress would not have instituted a special prevailing wage methodology for governmental research organizations. As an administrative law judge stated in Administrator, Wage and Hour Division v. Dallas Veterans’ Affairs Medical Center, 1998-LCA-00003 (June 19, 2001), p. 3, appeals docketed, Nos. 01-077, 01-081 (ARB, July 18 and 19, 2001):

 

 [T]he mere fact that Respondent is a government agency does not preclude it from being an employer under the H-1B regulations. Neither the regulations nor the amendments contain any prohibition against government agencies being “employers.”

3. Fargo VAMC further argues that it cannot be an employer subject to the prevailing wage because the “prevailing wage” refers to the wage for the occupational classification in the “area of intended employment,” which is defined in the regulations as “the area within normal commuting distance of the place of employment.” Fargo VAMC contends that here the area of intended employment is “the Department of Veterans Affairs’ network of health care facilities,” with a “potential patient population” from “anyplace in the nation.” (Fargo br. pp. 6-7). Fargo VAMC thus proposes that “[t]he only logical method of calculating the ‘prevailing wage’ should be to look to those salaries paid to other VA physicians.” Id.[22]

First, the definition of prevailing wage has nothing to do with whether an entity is an employer. Second, even if it did, the question of whether the correct data was used in determining the prevailing wage was finally determined in the ETA proceeding and is not an issue in this case (Stips. 16, 19; Exh. H). See 20 C.F.R. 655.731(d)(2)(i).[23]

4. Finally, Congress intended, and the VA statute encourages, payment to doctors at prevailing wage levels:

[I]t is the policy of Congress to ensure that the levels of total pay for physicians . . . of the Veterans Health Administration are fixed at levels reasonably comparable . . . with the income of non-Federal physicians.

38 U.S.C. 7439(a). See also S. Rep. No. 96-747, at p. *29, 96th Cong. 2nd Sess. (1980), reprinted in 1980 U.S. Code Cong. & Admin. News 2463 at 2467 (1980 Senate bill to amend Title 38 “authorize[s] the [VA] administrator to adjust minimum and maximum rates of pay for department of medicine . . . personnel employed under Title 38 . . . when necessary to (1) provide pay competitive with that being paid in non federal health-care facilities in the same area . . .”) (emphasis added).[24]

In Matter of Hunter Holmes McGuire Veterans Affairs Medical Center, 94-INA-00210, 1996 WL 616606 at p. *1 (Bd. Alien Lab. Cert. App., Oct. 7, 1996)(en banc), a case involving the Department of Veterans’ Affairs and its hiring of an alien physician, the Board of Alien Labor Certification Appeals (“BALCA”) held that the VA statute provides a mechanism, at 38 U.S.C. 7439,[25] for seeking to modify the special pay rates of physicians when the VA is unable to recruit well-qualified physicians because current rates are not competitive with those of non-VA physicians. The BALCA also said at the same time that the labor certification regulations “do not provide an exception, either express or implied, for a Federal wage schedule.”[26]

As discussed in detail in the Administrator’s Brief in Support of Summary Judgment (pp. 23-32), and in the statement of facts in this brief, Fargo VAMC could have followed its own statute and complied with the prevailing wage requirements. Indeed, Fargo VAMC admits that the applicable prevailing wage rates are below the maximum that a DVA physician could be paid under the VA statute, that it had the discretion to pay geographic location Special Pay up to $17,000 annually per doctor and scarce specialty pay up to $40,000 per doctor, and that it could have started the doctors at a higher pay grade and step than those at which they were started (Stips. 41, 43, 49). It also could have utilized other types of Special Pay, such as responsibility pay or exceptional qualifications pay. Fargo VAMC documented that Special Pay was warranted, yet chose not to pay the higher amounts that would have allowed it to meet the prevailing wage requirements (Exh. L-1 to L-10; W-1, W-4, W-6; Stip. 27-29, 39-44, 49, 53-55). [27] In sum, Fargo VAMC was clearly subject to the applicable prevailing wage requirements, and was just as clearly in a position to meet them.

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CONCLUSION

For the reasons stated above, the Administrator respectfully requests that the Board affirm the ALJ’s Decision and Order in its entirety.

Respectfully submitted,

HOWARD M. RADZELY

Acting Solicitor of Labor

 

STEVEN J. MANDEL

Associate Solicitor

 

WILLIAM C. LESSER

Deputy Associate Solicitor

 

PAUL L. FRIEDEN

Counsel for Appellate Litigation

 

 

CAROL B. FEINBERG

Attorney

U.S. Department of Labor

200 Constitution Ave., N.W.

N 2716

Washington, D.C. 20210

(202) 693-5555

 

Counsel for the Administrator

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Administrator’s Response Brief was served to the following on this 30th day of September 2003, by Federal Express, overnight mail, postage prepaid:

Alan Duppler, Esq.

Department of Veterans Affairs

Office of Regional Counsel (02)

2101 Elm Street

Fargo, ND 58102

and by U.S. mail, First Class, postage prepaid:

Honorable John M. Vittone

Chief Administrative Law Judge

U.S. Department of Labor

Office of Administrative Law Judges

800 K Street, N.W.

Suite 400-N

Washington, D.C. 20001-8002

 

Carol B. Feinberg

Attorney

 

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FOOTNOTES

________________________________________

 

[1] On April 7, 2003, the Administrator filed a Motion to Amend Judgment to update the back wage computations. The parties stipulated to the updated amount (Stipulation 61), and on June 16, 2003, Judge Vittone issued a Supplemental Decision and Order Approving Stipulation.

[2] The implementing regulations were amended on December 20, 2000. See Department of Labor (“DOL”) Interim Final Rule, 65 Fed. Reg. 80110 (December 20, 2000). The violations in this case occurred during the effective periods of both regulations. Unless otherwise noted, the citation to the amended regulations is provided, since there are no material differences between the portions of the two that are applicable to this case.

[3] The doctors included one cardiologist, five internist-primary care physicians, one neurologist, one infectious disease specialist, and two hematologist/oncologists. The doctors worked full-time performing their respective medical specialties (Stip. 26).

[4] The Fargo VAMC had obtained the correct prevailing wage determination for cardiologists, but did not utilize it in setting the wage of its H-1B cardiologist (Stip. 10; Exh. C).

[5] The parties have stipulated that, pursuant to 20 C.F.R. 655.731(d)(2), the above-listed SESA prevailing wage determinations are the final determinations regarding the applicable prevailing wages (Stips. 16, 19; Exh. C, D).

[6] Fargo VAMC was also cited for failure to provide notice of the LCA filings, and failure to make the LCA and other public documents available for public examination. Civil money penalties were not assessed, and these violations were not appealed (Exh. I, J).

[7] The back wage amount due the doctors after February 16, 2002 totals $5,101.68, and was the subject of the Supplemental Decision and Order Approving Stipulation.

[8] These facts and those that follow, regarding compensation allowed by the VA statute, are set out to show that, contrary to the Fargo VAMC’s contention, there is no tension whatsoever between that statute and the requisite prevailing wage under the INA. See infra.

[9] The Fargo VAMC Professional Standards Board, an internal committee comprised of Fargo VAMC staff members, initially determined the pay grade, step, and Special Pay of the doctors, and the Fargo VAMC hospital director had the discretion to accept or reject the Board’s recommendations. He accepted the Board’s recommendations (Stip. 40).

[10] Other components of Special Pay for most of the doctors included $9,000 for full-time status and $2,000 for board certification (Stips. 25, 29; Exh. L-1 through L-10).

[11] Both cardiology and primary care were deemed nationwide scarce specialties during the tenure of the doctors (Stip. 33, Exh. P, p. 3B-App. F-3). Six of the ten doctors worked in one of these two specialties (Stip. 26). A May 27, 1994 VA memorandum allowed the hospital’s executive committee to immediately authorize up to $15,000 in scarce specialty pay for physicians working in primary care (Stip. 38, Exh. V). All of the primary care doctors here received less than the $15,000 authorized nationwide (Exh. L-2, L-3, L-5, L-7, L-10).

[12] The hospital also had authority to recommend that the doctors receive Quality Step Increases, which immediately raise the doctor’s pay to the next pay step (Stip. 44). Only two doctors received these increases. Id. Additionally, the hospital had the discretion to award eligible doctors up to $15,000 annually for “Responsibility Pay” and, with headquarters’ approval, up to $45,000 annually (Stip. 53). VA headquarters may further approve up to $15,000 annually for “Exceptional Qualifications Pay.” (Stip. 55). None of the ten doctors in question received these types of pay (Exh. L-1 through L-10).

[13] The ALJ had previously rejected the argument that ETA’s calculation of the prevailing wage was erroneous (D & O 6). The parties stipulated that this determination was final (Stip. 16).

[14] The INA defines a “specialty occupation” as an occupation requiring the application of highly specialized knowledge and the attainment of a bachelor’s degree or higher. See 8 U.S.C. 1184(i)(1).

[15] Section 212(n) of the INA, 8 U.S.C. 1182(n), was again amended by the American Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”), Title IV of Pub. L. No. 105-277, 112 Stat. 2681 (Oct. 21, 1998).

[16] Pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 at 2194-2196 (November 25, 2002), the adjudication of immigrant visa petitions was transferred from INS to the BCIS.

[17] Pursuant to this authority, the ARB has jurisdiction to review the ALJ’s decision and determine whether Fargo VAMC is subject to and must comply with the prevailing wage requirements. See 5 U.S.C. 557(b) and 20 C.F.R. 655.845.

[18] Fargo VAMC also states that “[p]erhaps the visas in question were improvidently granted.” (Fargo br. p. 5). As noted earlier, DOL must certify an LCA within seven days unless it is incomplete or obviously inaccurate. Fargo VAMC attested that it will pay the higher of the actual wage or the prevailing wage level for the occupation in the area of employment. The bottom of each LCA signed by Fargo VAMC contains the following statement from 20 C.F.R. 655.740(c): “The Department of Labor is not the guarantor of the accuracy, truthfulness or adequacy of a certified labor application.” (Exh. A-1 through A-10). DOL is authorized to investigate non-obvious errors on LCAs only in enforcement actions, such as this one. See 20 C.F.R. 655.805. As the legislative history states,

Because of the need of employers to bring H-1B aliens on board in the shortest possible time, the H-1B program’s mechanism for protecting American workers is not a lengthy pre-arrival review of the availability of suitable American workers (such as the labor certification process necessary to obtain most employer-sponsored immigrant visas). Instead, an employer files a “labor condition application” with the Department of Labor making certain basic attestations (promises) and the Department then investigates complaints alleging noncompliance.

H.R. Rep. No. 106-1048, *171, 106th Cong., 2d Sess. (2001), 2001 WL 67919, p. 464 of 618.

[19] The exclusivity provision at 38 U.S.C. 7421 was previously codified at 38 U.S.C. 4108(a) -- the section analyzed in Colorado Nurses. See 38 U.S.C.A. 7421, Revision Notes and Legislative Reports.

[20] In an analogous case, the Supreme Court held that 38 U.S.C. 211(a), which provided the VA with final decision-making authority “on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans,” does not foreclose judicial review of the issue of whether a Veterans Administration regulation violates the Rehabilitation Act of 1973, 29 U.S.C. 794. See Traynor v. Turnage, 485 U.S. 535, 541-45 (1988). The Court reasoned that there is no “reason to believe that the Veterans’ Administration has any special expertise in assessing the validity of its regulations construing veterans’ benefits statutes under a later passed statute of general application [i.e., the Rehabilitation Act].” Id. at 544. Congress later replaced 38 U.S.C. 211(a) with 38 U.S.C. 511. See Sugrue v. Derwinski, 26 F.3d 8,11, n.2 (2d Cir. 1994), cert. denied, 515 U.S. 1102 (1995).

[21] In its Reply to the Administrator’s Motion for Summary Judgment filed with the ALJ, Fargo VAMC argued that pursuant to section 1182(j)(2), Congress intended the INA to apply only to U.S. agencies that employ doctors who teach or conduct research. The statute at 8 U.S.C. 1182(j)(2)(A) does limit the type of employer that may employ a foreign medical graduate to work as a teacher or researcher to “a public or nonprofit private educational or research institution or agency in the United States.” Section 1182(j)(2)(B), however, places no limitation on the type of employer that may employ foreign medical graduates (be they teachers, researchers, or practitioners) who have passed the appropriate licensing examination, and who are either competent in English or have graduated from an accredited medical school.

[22] In fact, the prevailing wage is based on the occupational classification in the area of intended employment, not the customer base. See 20 C.F.R. 731(a)(2). In the instant case, DOL correctly compared the proposed wages of the VA physicians at issue with the prevailing wage of physicians in the area performing the same specialties -- cardiology, internist/primary care, neurology, infectious diseases, hematologist/oncologist (Exh. C, D). “VA doctor” is not a medical specialty.

[23] Fargo VAMC stipulated that the prevailing wage determinations used to determine the back wages in this case are final as to the applicable prevailing wage (Stip. 16, 19).

[24] The VHA policy manual also contemplates payment of above-minimum entrance rates to “[e]nable VA to recruit or retain well-qualified employees . . . where recruitment or retention problems are being caused by higher non-Federal (nonovertime) rates of pay” and to “[p]rovide basic pay in amounts competitive with . . . the amount of the same type of pay paid to the same category of health-care personnel in the same labor market.” (Exh. P, p. 3D-2, section 4, para. c(1)(a),(b)) (emphases added).

[25] The components of Special Pay are outlined in 38 U.S.C. 7433 and, as noted above, include scarce specialty pay up to $40,000 annually “for service in a medical specialty with respect to which there are extraordinary difficulties (on a nationwide basis or on the basis of the needs of a specific medical facility) in the recruitment or retention of qualified physicians,” and geographic pay up to $17,00 annually “for service in a specific geographic location with respect to which there are extraordinary difficulties in the recruitment or retention of qualified physicians in a specific category of physicians.” 38 U.S.C. 7433 (b)(3)(A) and (b)(6). The factors that go into determining whether scarce medical specialty pay is warranted include “[s]alary comparisons with non-Federal employers,” and “any other locally specific factors which bear on the facility’s ability to recruit and retain individuals in the scarce medical . . . specialty.” (Exh. P, p. 3B-App. F-6, para. g and i) (emphases added).

[26] Hunter Holmes involved the permanent alien certification program at 20 C.F.R. Part 656. See 8 U.S.C. 1182(a)(5)(A). The H-1B prevailing wage determinations are to be interpreted by DOL in a “like manner” to the permanent program. See H.R. Conf. Rep. No. 101-955, 101st Cong. 2nd Sess. (1990), reprinted in 1990 U.S. Code Cong. & Admin. News 6784, at 6787, 1990 WL 201613.

[27] For example, Fargo VAMC paid H-1B doctor Rajeev Kaul no geographic pay and only $10,000 in scarce specialty pay, even though it noted the following in his Special Pay Authorization form (Exh. L-5):

Scarce specialty pay is imperative if we are to compete with higher community salaries to recruit and retain Dr. Kaul as part of a core group of essential primary care physicians and continue to serve our veterans with timely medical care.

 
Employee Protections Extend to VA Physicians in DOL Investigations
Posted Sep 19, 2008
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Immigration laws contain protections against employer retaliation and termination in situations where an employee has disclosed violations of the labor condition application (LCA) requirements or cooperated with the U.S. Department of Labor (DOL) in investigations of such violations. The LCA is part of the H1B process, and relates to wage and other employer obligations. Employers are prohibited from intimidating, threatening, restraining, coercing, blacklisting, discharging, or otherwise discriminating against employees (or former employees) who disclose LCA violations and/or cooperate in DOL investigations or other proceedings related to the LCA violations. This issue was explored recently by the Administrative Review Board (ARB) of the DOL in connection with a case involving the Veterans Administration Medical Center (VAMC) in Fargo, North Dakota. The case went in favor of the terminated employee.
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Violations Found : Reinstatement and Back Pay Ordered
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The ARB found that the VAMC violated the employee protection provisions by terminating the employment of two doctors for their cooperation with a DOL investigation into allegations of H1B/LCA violations. One doctor settled the claim. For the other doctor, the ARB ordered reinstatement of employment and back pay, as well as other remedies, including relocation expenses.
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Employer Barred from Nonimmigrant Approvals for at Least Two Years
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When a violation of the anti-retaliation provisions has occurred, there is a mandatory disqualification period of at least two years. During that period, the employer is disqualified from obtaining approvals of certain nonimmigrant petitions, including H1Bs and Os. Thus, this is a serious penalty, with consequences for the employer that are well beyond monetary penalties.
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Case Details
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The VAMC employed the two physicians at issue in Fargo, North Dakota. Both physicians were active in a union that represented VAMC physicians. They spearheaded a physician pay study and cooperated in a DOL investigation prompted by a complaint by another physician. One of the physicians had, during the course of his work, earned favorable reviews, which led to a two-step pay increase and special pay dispensation.
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The DOL investigation led to findings of violations and an order to pay back wages in excess of $200,000. This, in turn, led to unfavorable media attention. Thereafter, both doctors were subjected to a hostile work environment. Within approximately eight weeks of the publication of the WHD findings, retaliatory steps were taken, including withdrawal of the two-step pay increase, hostilities during meetings, open publication of disagreements, and, ultimately, termination.
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The union president filed a complaint with the DOL on the doctors' behalf. The final outcome is the confirmation of the findings in the initial hearing, and the penalties against VAMC, discussed above.
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VA Physicians in H1B Status Entitled to Protections
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One of the issues in this case was whether the employee protection provisions, discussed above, apply to the VA physicians. The VAMC argued that the immigration protections provisions did not cover the physicians' employment. The VAMC argued that the physician was a federal employee under certain provisions that are exempt from any "civil service or classification laws, rules, or regulations." The VAMC tried to argue, without any authority, that the immigration protections are a civil service law and, thus, not applicable to this type of employment.
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The ARB found the VAMC's argument unpersuasive. Immigration laws protect all employees who are classified as H1B, regardless of the type of employer. This is similar to a previous VA case reported in our August 15, 2008 MurthyBulletin article, ARB: VA Hospitals Not Governmental Research Organization for Prevailing Wage Purposes. VA Hospitals, similar to other private H1B employers, are required to comply with the H1B statute and regulations, including employee protection provisions.
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Conduct Found to be Retaliatory
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The VAMC also argued that its termination of the physician was not retaliatory, as there was a two-year period between the employee's cooperation with the DOL investigation and the termination. They claimed the termination was due to budgetary difficulties. A careful review of the timeline, however, revealed that the employment environment became hostile after completion of the DOL investigation, and that this was followed by a reduction in pay and a subsequent termination two months thereafter. Based on this timeline, the ARB found that the facts supported a conclusion that retaliation motivated the decision, and that the budgetary difficulty claims were unsupported. The ARB seriously questioned the validity of the claims of budgetary difficulties. They noted that the VAMC had a year-end budget surplus, did not otherwise reduce its workforce or take any other cost-cutting measures, and hired new physicians during the same fiscal year.
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Conclusion
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The decision establishes that the VAMC's H1B employees, including physicians working at a VA facility, are protected by the employee protection provisions under law. MurthyDotCom and MurthyBulletin readers, employees and employers alike, should be aware of these provisions. Employees often feel powerless when their employers are not complying with the law. This example shows that, in the H1B context, there are remedies for violations. This case also shows that employers should be careful about H1B compliance. The penalties allowed extend beyond the possible financial penalties, and include provisions that prevent approval of additional H1B petitions in future years.