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)
Back to Top
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.
Back to Top
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.
Back to Top
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) (Ҥ7422 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.
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