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

"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).

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

   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.

   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.

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?

"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.

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

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

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.

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.

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).

    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

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