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BEVERLY ENTERPRISES, INC. v. HERMAN

October 26, 2000

BEVERLY ENTERPRISES, INC., AND BEVERLY HEALTH AND REHABILITATION SERVICES, INC., PLAINTIFFS,
V.
ALEXIS M. HERMAN, SECRETARY OF LABOR, AND THE UNITED STATES DEPARTMENT OF LABOR, DEFENDANTS.



The opinion of the court was delivered by: Stanley S. Harris, United States District Judge.

OPINION

Before the Court are the parties' cross-motions 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

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as non-immigrant aliens for a period of up to five years.*fn1 See 8 U.S.C. § 1101(a)(15)(H)(i)(a), 1182(m)(4) (1994) (repealed).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 ...

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