International Health Services, Inc. ads Administrator, 93-ARN-1 (ALJ May 20, 1994)
Date: May 20, 1994
Case No. 93-ARN-1
In the Matter of:
International Health Services, Inc./
Naval Hospital,
Respondent
Ads
Administrator, Employment Standards
Administration, Wage and Hour Division,
Complainant
Before: JAMES GUILL
Associate Chief Judge
POSTHEARING ORDER NUMBER SEVENDE NIAL OF STAY
On February 8, 1994, Respondent filed a motion for stay of
this proceeding pending resolution of its complaint filed January
19, 1994 under the Job Service Complaint System (JSCS), 29 C.F.R.
Part 658, Subpart E. On March 4, 1994, the undersigned issued
Posthearing Order Number Six in which Respondent was ordered to
provide documentation sufficient to establish why, even if
Respondent could obtain a favorable ruling under the JSCS, the
evidentiary record should be permitted to be reopened in view of
the timing of the filing of the JSCS complaint and the motion for
a stay. Respondent was directed to address what relevant new
evidence was discovered, and why that evidence could not have
been discovered and submitted prior to the conclusion of the
hearing. Respondent submitted its response on March 16, 1994.
Complainant submitted its reply to the response on April 1, 1994.
The positions of Respondent and Complainant stated in the
initial submissions on Respondent's motion for a stay were
detailed in Posthearing Order Number Six, and are not restated
here. In its response, Respondent submits that the new evidence
consists of recent wage determinations made by the state agency
after the close of the record herein. It contends that the new
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wage determinations are relevant because they address the issue
of "entry level" versus "experienced" rates provided for the
attestations at issue in this proceeding, and they show that the
state agency has now recognized that its earlier prevailing wage
determinations and earlier interpretation of survey data was
erroneous. Respondent contends that this matter is crucial to
fair implementation of the INRA program, and that this forum
should have all relevant evidence on the prevailing wage rate
issue before rendering a decision. Respondent does not seek a
reopening of the record in the instant case, per se, but
apparently would seek to submit into the record any favorable
ruling it might obtain through the JSCS.
Complainant's reply is that the new wage determinations are
not relevant to the wage determinations at issue in this matter.
Complainant notes that Respondent's submission does not make it
clear how, if at all, the state agency modified its method for
determining the prevailing wage, and contends that even if it
did, that is not an admission of prior error.
Discussion
In Posthearing Order Number Six, the standard to be applied
in determining whether to grant a stay was set out, and that
standard bears repeating:
In the absence of statutory mandate, whether to stay an
action for completion of another action is within the sound
discretion of the tribunal, and in exercising that
discretion, the tribunal should consider all factors, such
as possible delay, the relative difficulty of estimating
what the other tribunal will decide, the importance to the
case of the other tribunal's determination, the relative
burden on the parties, which action was commenced first, and
any other relevant factors. See, e.g., Commerce Oil
Refining Corp. v. Miner, 303 F.2d 125 (1st Cir. 199x);
Lummun Co. v. Commonwealth Oil Refining Co., 280 F2d
915 (1st Cir. 199x). See also generally 1 Am Jur 2d,
Actions §§ 92.
Posthearing Order Number Six at 2. Considering the motion under
this standard, I am not persuaded that a stay is appropriate.
Belatedness of filing of JSCS complaint
The foremost consideration militating against Respondent's
request for a stay is its belatedness. The purpose underlying
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the imposition of time constraints upon parties to a case is
pragmatic: it ensures the expeditious resolution of claims and
spares the administrative-judicial system from litigation of
stale claims.
As noted in Posthearing Order Number Six, the record
evidences that Complainant asserted its position that a challenge
to a SESA wage determination must be made under the JSCS in its
prehearing brief, which was received by this Office on July 2,
1993, and is shown as having been served on counsel for
Respondent. (Complainant's prehearing brief at 13) This
position was again asserted by Complainant during the hearing,
(see, e.g., Hearing Transcript, July 21, 1993 at 474, 507, 520-
21; Oct. 12, 1993 at 129-30), and in its post-hearing brief.
(Complainant's posthearing brief at 33-34) The hearing in this
matter was completed on October 14, 1993. Hence, more than seven
months passed from the time Respondent was formally made aware of
Complainant's position and the time it filed the motion for a
stay, more than three months passed from the completion of the
hearing before the JSCS complaint was filed, and nearly four
months passed following the hearing before a motion for a stay
was filed.
The fact that recent wage determination rendered by the
state employment agency may indicate that prior
determinations were incorrect does not explain why Respondent
waited until the eleventh hour to file its JSCS complaint when it
knew for many months that Complainant's position is that the JSCS
is the only forum for contesting the correctness of a prevailing
wage rate.
I consider the fact that Respondent had many months in which
it could have pursued the JSCS remedy, but chose to wait until
several months after the hearing in this matter to act, to
strongly weigh against the granting of a stay.
Possible delay
A granting of Respondent's motion would ensure further delay
-- which could be quite substantial. One can only speculate, but
a JSCS proceeding could take many months to complete. The INRA
and the implementing regulations mandate that enforcement actions
relating to attestations proceed expeditiously. See,
e.g., 29 C.F.R. §§ 504.405(d),504.435, 504.440.
Although both Complainant and Respondent have waived the
statutory deadlines for hearing and decision, INRA's clear
intention of quick decisions on enforcement actions militates
against a stay. Though Complainant cannot now revoke that
waiver, its contention that it never
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contemplated a delay of this magnitude when it agreed to the
waiver of the time limitation on hearing of this matter is well-
taken.
Difficulty of predicting what JSCS would decide
While it is beyond the purview of this proceeding to
determine whether Respondent's JSCS complaint was timely filed,
the delay in filing was of such magnitude as to surely raise it
as an issue to be resolved in the JSCS proceeding. Though
Respondent makes out a colorable argument regarding a change in
the method of calculating the prevailing wage rate, I cannot be
certain that Respondent would be successful before the JSCS in
obtaining a favorable finding on the merits. Accordingly, I
conclude that this factor does not support the motion for a stay.
Importance of JSCS determination to Respondent's case
If Respondent is able to obtain a favorable ruling before
the JSCS, it could substantially undermine the Administrator's
position on the alleged prevailing wage rate violations -- either
by completely exonerating Respondent or by substantially reducing
back wage liability. This factor weighs in favor of the motion
for a stay.
On the other hand, the prevailing wage determinations at
issue in this matter are not the only alleged violation. A
finding in favor of Complainant in only one of the various
violations exposes Respondent to a 12 month "debarment" from INRA
attestation petitions. Congress undoubtedly intended that
violators of INRA attestation requirements be exposed to this
penalty relatively quickly. Thus, this factor militates against
granting the stay.
In addition, it has not been determined yet in this
proceeding whether Respondent's only recourse for addressing the
propriety of the prevailing wage rate was the JSCS: that was
only Complainant's position and I do not interpret Respondent's
filing of a JSCS complaint as relinquishing its apparent position
that the prevailing wage rate may be attacked in this INRA
proceeding. Since this is still an open question, the edge in
favor of staying the INRA proceeding for completion of a JSCS
proceeding because of its importance to Respondent's case is less
clear.
Relative burden on the parties
A stay would not appear to burden Respondent in regard to
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the instant INRA proceeding. A stay would burden Complainant
insofar as it delays the rendering of a final decision on
Respondent's potential violation of the INRA attestations at
issue here. In addition, a stay would substantially impair the
alien nurses who stand to benefit from any back pay award.
Both parties will be burdened by participation in the JSCS
proceeding -- they, in effect, will be relitigating much of what
has been presented into evidence in this INRA proceeding.
Accordingly, the overall burden on the parties involved militates
against a stay.
Summary
This proceeding has already well exceeded the statutory and
regulatory time limitations in order to provide Respondent with a
full and fair opportunity to present its defense. At this late
date in the proceeding I am not convinced that a stay would
significantly contribute to proper resolution of the alleged INRA
violations.
ORDER
IT IS ORDERED that
(1) Respondent's motion for a stay is DENIED.
(2) the parties comply with the following schedule for
submission of post-hearing briefs:[1]
(a) Respondent's post-hearing brief must be postmarked
(or time-stamped by this Office if hand-delivered)
on or before June 8, 1994 to be considered timely.
(b) Complainant's reply brief must be postmarked (or
time-stamped by this Office if hand-delivered), on
or before June 22, 1994 to be considered timely.
(3) additional enlargement of the briefing period will be
granted only for compelling reasons.
At Washington, D.C. Entered:
by:___________________________
JAMES GUILL
Associate Chief Judge
JG/trs
[ENDNOTES]
[1] It is not necessary to submit posthearing briefs by fax.
