The opinion of the court was delivered by: Stanley S. Harris, United States District Judge.
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
Plaintiffs Beverly Enterprises, Inc., and Beverly Health and
Rehabilitation Services, Inc., own and operate a number of health
care facilities that provide long-term 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(a)(15)(H)(i)(a), 1182(m)(1994) (repealed).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.*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(1994) (repealed).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
(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
(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
(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 ...