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
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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
[ENDNOTES]
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.").
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 e-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.
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.
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.
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.
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.
13 VAMC sent a letter "in lieu of formal rebuttal." We construe this as VAMC's Reply.
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).
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.