(1989), reprinted in 1989 U.S.C.C.A.N. 1894. To achieve this
goal, the legislation provided a procedure under which employers
more easily could hire foreign nurses. In order to ensure the
continued recruitment and retention of citizen nurses, under the
admission program established by the INRA ("the H1A program"),
Congress required employers to attest to certain conditions.
8 U.S.C. § 1101(a)(15)(H)(i)(a); id. § 1182(m)(2)(A); H.R.Rep.
No. 101-288, reprinted in 1989 U.S.C.C.A.N. at 1887-90. For
example, the INRA required employers to attest that: (1) the
employment of the alien would not adversely affect the wages and
working conditions of registered nurses already employed at the
facility; and (2) an alien employed by a facility would be paid
the wage rate for registered nurses similarly employed by the
facility. 8 U.S.C. § 1182(m)(2)(A)(ii)-(iii).
Although Congress generally delineated the attestation
requirements in the INRA itself, the statute further provided
that the DoL "shall . . . publish final regulations to carry out
section 212(m) [8 U.S.C. § 1182(m)] of the Immigration and
Nationality Act." Pub.L. No. 101-238, 103 Stat. 2099, 2102
(1989). In accordance with this provision, the DoL published
interim final regulations effective December 6, 1990, see 55
Fed.Reg. 50,500 (1990), and final regulations in January 1994.
See 59 Fed.Reg. 882, 897 (1994).
Beverly Enterprises, Inc., and Beverly Health and
Rehabilitation Services, Inc., (collectively "Beverly") own and
operate a large number of health care facilities that provide
long-term nursing care and rehabilitation services. In April
1995, the DoL began an investigation to determine whether
Beverly's employment practices were in violation of the INRA.
When Beverly asked what motivated the investigation,
investigators allegedly responded that it was a "routine audit,"
and specifically denied that it was in response to any complaint.
DoL investigators repeatedly required more information, which
Beverly provided, based on the belief that it was under a legal
obligation to do so. In February 1996, Beverly sought to confirm
that the investigation was not in response to a complaint, but
the investigators refused to confirm their earlier statement. In
May 1996, Beverly informed the DoL that unless and until the
agency stated whether there was a complaint, Beverly would not
provide the information requested. The DoL allegedly responded
that it did not need a complaint to conduct an investigation.
However, it stated that the DoL had received a complaint about
Beverly from the Department of State. The DoL allegedly refused
to confirm or deny the receipt of any complaint from a private
After another attempt to ascertain whether the investigation
was undertaken in response to a complaint, Beverly refused to
participate further in the investigation. The DoL, however,
allegedly continued its investigation in secret, and in August of
1997 it contacted Beverly to present the results. The parties
were unable to agree on a date to meet, and Beverly did not hear
anything further from the DoL.
On October 22, 1997, Beverly filed a complaint in this Court.
On January 6, 1998, Beverly representatives met with DoL
officials. At that meeting, the DoL presented the information it
obtained as a result of its investigation and asked Beverly to
pay over $3.4 million in back wages covering the investigation
period, allegedly based on a failure to pay the appropriate
"prevailing wage" to either its H1A nurses or its citizen nurses.
Beverly then filed an amended complaint on January 21, 1998, in
fight of the new factual posture of the case. The amended
complaint alleges that the DoL violated the Administrative
Procedure Act ("APA") by: (1) promulgating various regulations
that are "in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right," 5 U.S.C.
§ 706(2)(C);*fn2 (2) investigating Beverly without a complaint
from an "aggrieved party" within the meaning of
8 U.S.C. § 1182(m)(2)(E)(ii); (3) interpreting "aggrieved party" to include
a government agency, namely, the Department of State; (4)
initiating an invalid investigation against Beverly; and (5)
conducting an investigation beyond the time limit specified in
STANDARD OF REVIEW
A motion to dismiss should not be granted "unless plaintiffs
can prove no set of facts in support of their claim which would
entitle them to relief." Kowal v. MCI Communications Corp.,
16 F.3d 1271, 1276 (D.C.Cir. 1994); Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). To that end, the
complaint is construed liberally in the plaintiffs' favor, and
plaintiffs are given the benefit of all favorable inferences that
can be drawn from the facts alleged. EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C.Cir. 1997);
Tele-Communications of Key West, Inc. v. United States,
757 F.2d 1330, 1334-35 (D.C.Cir. 1985).
Defendants challenge Beverly's claims on several grounds. They
contend that all the claims should be dismissed because there has
been no final agency action, that they are not ripe for judicial
review, and that Beverly has failed to exhaust administrative
remedies. Furthermore, defendants contend that, to the extent
that Beverly brings a pre-enforcement challenge to DoL
regulations, that claim violates the statute of limitations and
is barred by laches.
I. Whether Beverly's Claims Implicate "Final Agency Action"
Under the APA, "[a]gency action made reviewable by statute and
final agency action for which there is no other adequate remedy
in a court are subject to judicial review." 5 U.S.C. § 704; see
also FTC v. Standard Oil Co., 449 U.S. 232, 238, 101 S.Ct. 488,
66 L.Ed.2d 416 (1980). "Final agency action" is a jurisdictional
prerequisite to judicial review.*fn3 See Hindes v. FDIC,
137 F.3d 148, 161 (3d Cir. 1998); Ukiah Valley Med. Ctr. v. FTC,
911 F.2d 261, 266 (9th Cir. 1990); Ticor Title Ins. Co. v. FTC,
814 F.2d 731, 745 (D.C.Cir. 1987) (Williams, J., concurring);
Independent Petroleum Ass'n of America v. Babbitt, 971 F. Supp. 19,
29 n. 5 (D.D.C. 1997). Defendants contend that there is no
final agency action in this case because Beverly filed its
complaint while the case was still in an investigative posture.
Moreover, although on March 13, 1998, the Wage and Hour
Administrator ("the Administrator") issued a written
determination that Beverly violated R4RA and DoL regulations,
defendants contend that, because Beverly appealed that decision
to an Administrative Law Judge ("ALJ") on March 28, 1998, that
cannot be final agency action.
The Supreme Court has made it clear that the "finality" element
of the APA should be interpreted "in a pragmatic way." Standard
Oil, 449 U.S. at 239, 101 S.Ct. 488; Abbott Laboratories v.
Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681
(1967). Factors relevant to the finality inquiry include: (1)
whether the action was a "definitive" statement of the agency's
position; (2) whether it had a direct and immediate effect on the
day-to-day business of the party affected; and (3) whether
analysis of the action is legal or factual in nature. See
Standard Oil, 449 U.S. at 239, 101 S.Ct. 488 (citing Abbott
Laboratories, 387 U.S. at 151-54, 87 S.Ct. 1507); Baker Hughes
Inc. v. Kirk, 921 F. Supp. 801, 806 (D.D.C. 1995); see also Her
Majesty the Queen in Right of Ontario v. EPA, 912 F.2d 1525,
1531 (D.C.Cir. 1990) ("The [finality] inquiry seeks to
distinguish a tentative agency position from the situation where
`the agency views its deliberative process as sufficiently final
to demand compliance with its announced position.'") (quoting
Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 436 (D.C.Cir. 1986)).
Count I of Beverly's complaint, which consists of a
pre-enforcement challenge to various DoL regulations, clearly
implicates final agency action. It is well-settled that the
promulgation and publication of a final regulation after formal
notice and comment is "final" agency action.*fn4 See Toilet
Goods Ass'n v. Gardner, 387 U.S. 158, 162, 87 S.Ct. 1520, 18
L.Ed.2d 697 (1967) [hereinafter Toilet Goods I]; Abbott
Laboratories, 387 U.S. at 149-52, 87 S.Ct. 1507; State Farm
Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474, 480 (D.C.Cir. 1986).
Counts II-V challenge: (1) the DoL's authority to investigate
Beverly without a complaint from a private entity, (2) the DoL's
authority to investigate Beverly on the basis of a complaint from
the Department of State; and (3) the timeliness of the DoL's
investigation. See Am. Compl. §§ 46-60. "When completion of an
agency's processes may obviate the need for judicial review, it
is a good sign that an intermediate agency decision is not
final." DRG Funding Corp. v. Secretary of Hous. & Urban Dev.,
76 F.3d 1212, 1215 (D.C.Cir. 1996); see also Acura of Bellevue
v. Reich, 90 F.3d 1403, 1408 (9th Cir. 1996); Bellsouth Corp.
v. FCC, 17 F.3d 1487, 1489-90 (D.C.Cir. 1994). The Court
concludes that these counts do not implicate final agency action
due to Beverly's administrative appeal of the Administrator's
determination that Beverly violated INRA and DoL regulations.
Although Beverly argues to the contrary, the Court believes that
judicial review of the DoL investigation of Beverly may end up
being unnecessary if the ALJ rules in favor of Beverly on its
administrative appeal. For example, if the ALJ determines that
"[t]he penalties and back wages sought by the Administrator are
barred, in whole or in part, by the statute of limitations,"
see Beverly's Request for Hearing, at 4 (Mar. 23, 1998)
(attached as Exhibit C to Beverly's Supplemental Memorandum in
Opposition to Defendants' Motion To Dismiss), Beverly will have
no reason to seek judicial review of the investigation. Cf. DRG
Funding, 76 F.3d at 1215 (concluding that an agency's decision
to collect a debt by offset was not final because if the agency's
"administrative review ends with the conclusion that the
corporation has no debt to [the agency], the corporation will
have no reason to seek a judicial determination of the proper
procedure for collecting one"). Accordingly, the Court dismisses
without prejudice Counts II-V for lack of subject matter
II. Whether Beverly's Claims Are Ripe for Adjudication
Defendants next contend that, even if Beverly's claims
implicate "final" agency action, those claims are not ripe for
[The] basic rationale [of the ripeness doctrine] is
to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also
to protect the agencies from judicial interference
until an administrative decision has been formalized
and its effects felt in a concrete way by the
challenging parties. The problem is best seen in a
twofold aspect, requiring [the Court] to evaluate
both the fitness of the issues for judicial decision
and the hardship to the parties of withholding court
Abbott Laboratories, 387 U.S. at 148-49, 87 S.Ct. 1507. Thus,
courts are to strike a balance between the interest in deciding
the issue in a more concrete factual setting and the hardship to
the parties caused by postponing judicial review. See Friends of
Keeseville, Inc. v. FERC, 859 F.2d 230, 235 (D.C.Cir. 1988);
State Farm, 802 F.2d at 479; Ciba-Geigy, 801 F.2d at 434.
Under the "fitness of the issues" prong, courts consider: (1)
whether the disputed claims raise purely legal questions and
would, therefore, be presumptively suitable for judicial review;
(2) whether the court or the agency would benefit from postponing
review until the policy in question has sufficiently
"crystallized" by taking on a more definite form; and (3) whether
the agency's action is sufficiently final. See Abbott
Laboratories, 387 U.S. at 149-151, 87 S.Ct. 1507; Cronin v.
FAA, 73 F.3d 1126, 1131 (D.C.Cir. 1996); Her Majesty the
Queen, 912 F.2d at 1532. When evaluating the second "fitness"
factor, courts consider such things as:
[Whether] further administrative action is needed to
clarify the agency's position . . . [whether] the
court's deliberations might benefit from letting the
question arise in some more concrete and final form,
. . . or [whether] resolution of the dispute is
likely to prove unnecessary.
State Farm, 802 F.2d at 479 (internal citations and quotation