Beverly Enterprises, Inc. v. Herman, Civ.A. 97-2475-SSH.

• Decision Date: 26 October 2000
• Docket Number: No. Civ.A. 97-2475-SSH.,Civ.A. 97-2475-SSH.
• Citation: 119 F.Supp.2d 1
• Parties: BEVERLY ENTERPRISES, INC., and Beverly Health and Rehabilitation Services, Inc., Plaintiffs, v. Alexis M. HERMAN, Secretary of the United States Department of Labor, and The United States Department of Labor, Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

119 F.Supp.2d 1

BEVERLY ENTERPRISES, INC., and Beverly Health and Rehabilitation Services, Inc., Plaintiffs, v. Alexis M. HERMAN, Secretary of the United States Department of Labor, and The United States Department of Labor, Defendants.

No. Civ.A. 97-2475-SSH.

United States District Court, District of Columbia.

October 26, 2000.

Steven Nathan Berk, Jenner & Block, Washington, DC, for plaintiffs.

AUSA David Jackson Ball, Jr., U.S. Attorney's Office, Civil Division, Washington, DC, for defendants.

OPINION

STANLEY S. HARRIS, District Judge.

Before the Court are the parties' crossmotions for summary judgment and their respective oppositions and replies thereto. Upon consideration of the parties' pleadings and the entire record, the Court grants plaintiffs' motion and denies defendants' motion. Although findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56, see Fed.R.Civ.P. 52(a); Summers v. Department of Justice, 140 F.3d 1077, 1079-80 (D.C.Cir.1998), the Court sets forth its reasoning.

BACKGROUND

Plaintiffs Beverly Enterprises, Inc., and Beverly Health and Rehabilitation Services, Inc., own and operate a number of health care facilities that provide longterm nursing care and rehabilitation services. Defendants are the Secretary of Labor and the Department of Labor (individually, and with the Secretary, "the DoL"). In January 1998, plaintiffs filed an amended complaint in this action, challenging, inter alia, regulations promulgated by the DoL pursuant to the Immigration Nursing Relief Act of 1989 ("INRA"), 8 U.S.C. §§ 1101(a)(15)(H)(i)(a), 1182(m) (1994) (repealed). On March 26, 1999, the Court dismissed plaintiffs' challenge to two of three regulations contained in Count One, as well as the remaining four counts of plaintiffs' lawsuit. See Beverly Enterprises, Inc. v. Herman, 50 F.Supp.2d 7 (D.D.C.1999). Remaining is plaintiffs' challenge to the third regulation contained in Count One—20 C.F.R. §§ 655.310(e)(1) & (f).

Congress enacted the INRA to alleviate a national shortage of registered nurses. See H.R.Rep. No. 101-288, at 1 (1989), reprinted in 1989 U.S.C.C.A.N. 1894. To that end, it established a program (the "H-1A program") allowing qualified registered nurses from foreign countries to come to the United States to work as non-immigrant aliens for a period of up to five years.¹ See 8 U.S.C. §§ 1101(a)(15)(H)(i)(a), 1182(m)(4) (1994) (repealed). Congress required facilities seeking to employ alien nurses under the H-1A program to attest to the following six conditions:

(i) There would be a substantial disruption through no fault of the facility in the delivery of health care services of the facility without the services of such an alien or aliens.

(ii) The employment of the alien will not adversely affect the wages and working conditions of registered nurses similarly employed.

(iii) The alien employed by the facility will be paid the wage rate for registered nurses similarly employed by the facility.

(iv) Either (I) the facility has taken and is taking timely and significant steps designed to recruit and retain sufficient registered nurses who are United States citizens or immigrants who are authorized to perform nursing services, in order to remove as quickly as reasonably possible the dependence of the facility on nonimmigrant registered nurses, or (II) the facility is subject to an approved State plan for the recruitment and retention of nurses (described in paragraph (3)).

(v) There is not a strike or lockout in the course of a labor dispute, and the employment of such an alien is not intended or designed to influence an election for a bargaining representative for registered nurses of the facility.

(vi) At the time of the filing of the petition for registered nurses under section 1101(a)(15)(H)(i)(a) of this title, notice of the filing has been provided by the facility to the bargaining representative of the registered nurses at the facility or, where there is no such bargaining representative, notice of the filing has been provided to registered nurses employed at the facility through posting in conspicuous locations....

Id. § 1182(m)(2)(A). Congress imposed these attestation requirements to ensure that facilities employing alien nurses under the H-1A program took steps to recruit and retain United States ("U.S.") nurses. See H.R.Rep. No. 101-288, at 5, 1989 U.S.C.C.A.N. at 1898.

Although Congress set forth the specific attestation elements in the text of the INRA, it directed the Secretary of Labor to "publish final regulations to carry out" 8 U.S.C. § 1182(m). Pub.L. 101-238, § 3(c)(1), 103 Stat. at 2103. In accordance with that directive, the DoL promulgated the following regulations purporting to implement the second and third attestation elements:

(e) The second attestation element: ... (1) Wages. To meet the requirement of no adverse effect on wages, the facility shall attest that it shall pay each nurse of the facility at least the prevailing wage for the occupation in the geographic area. The facility shall pay the higher of the wage required pursuant to this paragraph (e) or the wage required pursuant to paragraph (f) of this section (i.e., the third attestation element: facility wage)....

(f) The third attestation element: facility/employer wage. The facility employing or seeking to employ the alien shall attest that "the alien employed by the facility will be paid the wage rate for registered nurses similarly employed by the facility." ... The facility shall pay the higher of the wage required pursuant to this paragraph (f) or the wage required pursuant to paragraph (e) of this section (i.e., the second attestation element: no adverse effect).

20 C.F.R. §§ 655.310(e) & (f). The combined effect of these regulations is to require a facility employing H-1A nurses to pay all of its nurses—citizens and aliens alike—the greater of the existing wage rate paid to nurses (the "facility wage rate"), or the prevailing wage rate.² The prevailing wage rate is essentially the average wage rate paid to similarly employed registered nurses in the same geographic area. See 20 C.F.R. § 655.302 (defining "prevailing wage").

Plaintiffs' amended complaint challenges the DoL's regulations implementing the INRA's second and third attestation elements under the Administrative Procedure Act ("APA"), which authorizes a reviewing court to "hold unlawful and set aside agency action, findings, and conclusions found to be ... in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(C). Plaintiffs argue that the INRA requires facilities to pay H-1A nurses only the facility wage rate, and provides no basis for requiring a facility to pay all of its registered nurses the prevailing wage rate where that wage rate is higher than the facility wage rate.³ The DoL contends that Congress vested it with substantial discretion to ensure that wages are not adversely affected by the H-1A program by delegating it authority to publish final rules under the INRA, and that §§ 655.310(e)(1) & (f) are "reasonable and consistent with the purpose and structure of INRA." Defs.' Mot. at 10-13.

STANDARD OF REVIEW

Summary judgment may be granted only if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). As the foregoing Background demonstrates, plaintiffs' challenge to §§ 655.310(e)(1) & (f) turns on a question of statutory interpretation— whether the INRA authorizes the DoL to promulgate regulations requiring facilities to pay the greater of the facility or prevailing wage rate to all registered nurses as a condition of hiring an alien nurse under the H-1A program. Accordingly, it is appropriate for resolution on a motion for summary judgment.

The Court's inquiry into the proper interpretation of the INRA proceeds under the Supreme Court's well-known framework in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, the Court asks "whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. This inquiry requires the Court to exhaust "traditional tools of statutory construction," which include examining the statute's text, legislative history, structure, and purpose. Natural Resources Defense Council, Inc. v. Daley, 209 F.3d 747, 752 (D.C.Cir.2000) (quoting Bell Atlantic Tel. Cos. v. FCC, 131 F.3d 1044, 1047 (D.C.Cir.1997)). "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. If, however, the statute is "silent or ambiguous with respect to the specific issue," the Court proceeds to step two of the Chevron analysis and asks "whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778.

DISCUSSION

Plaintiffs argue that the DoL's regulations are invalid because the plain language of the INRA requires facilities to pay only the facility wage rate to alien nurses under the H-1A program.⁴ The DoL counters that the INRA's language is not so clear, and that the DoL's regulations are entitled to deference under step two of Chevron because, although Congress enacted the specific attestation elements in the INRA, "it left to the DoL the tasks of defining key statutory terms" by providing it with "broad legislative rulemaking authority." Defs.' Mot. at 11-12. The DoL contends that 20 C.F.R. § 655.310(e)(1), which sets the floor for wage rates at the prevailing wage rate, is a permissible construction of the second attestation element because it "is a time tested method for preventing wage reductions as a result of an influx of foreign workers." Defs.' Mot. at 13-14. Furt...