ADDITIONAL CASES Vickram Bedi, President, and Datalink Computer Products, Inc., Counter-Claimants, v. United States of America, Counter-Defendant. MEMORANDUM DECISION and ORDER I. INTRODUCTION On October 19, 2017, plaintiff United States of America (the “Government”) filed this civil action against defendants Datalink Computer Products, Inc. (“Datalink”), a computer sales and services company, and Datalink’s President Vickram Bedi (“Bedi”), in an effort to collect back wages awarded by the U.S. Department of Labor (“DOL”) to former Datalink employee Helga Ingvarsdottir (“Ingvarsdottir”), a native Icelander hired by Datalink through the Immigration and Nationality Act’s H-1B visa program. On January 29, 2018, Datalink and Bedi moved to dismiss the Government’s complaint. According to defendants, the Government’s debt collection effort was premature because the time for seeking judicial review of the DOL’s award under the Administrative Procedure Act (“APA”) had not yet expired. Alternatively, they argued the Government could not collect the debt because it is money owed to Ingvarsdottir, not to the United States. On June 1, 2018, defendants’ motion to dismiss was denied. United States v. Bedi (“Bedi I”), 318 F. Supp. 3d 561 (N.D.N.Y. 2018). After rejecting defendants’ threshold assertions about ripeness and estoppel, the Court addressed at leng th the question of whether the Federal Debt Collection Procedures Act of 1990 (“FDCPA”) authorized the Government to pursue the back pay awarded to Ingvarsdottir. Id. at 566-67. Bedi I ultimately answered that question in the affirmative. 318 F. Supp. 3d at 567. The analysis began from a simple premise: the FDCPA authorized the Government to institute a civil action in federal court to collect “an amount that is owing to the United States on account of a…fine, assessment, penalty, restitution, damages, interest…or other source of indebtedness.” Id. at 566 (citation omitted). Despite recognizing that the statute carves out an exception for debts “owing under the terms of a contract originally entered into by only persons other than the United States,” Bedi I agreed with the Government that Nat’l Labor Relations Bd. v. E.D.P. Med. Comput. Sys., Inc. (“E.D.P.”), 6 F.3d 951 (2d Cir. 1993), provided sufficient support for the legal proposition at the core of this case; i.e., that back pay awarded by the DOL to a non-party employee qualified as a “debt owing to the United States.” Bedi I, 318 F. Supp. 3d at 567. On July 12, 2018, defendants moved under 28 U.S.C. §1292(b) seeking to certify Bedi I for interlocutory appeal and for a stay of further proceedings in this forum pending the outcome of that appeal. Defendants again suggested the DOL award could not be collected by the Government because the United States was never party to any employment agreement with Ingvarsdottir. Defendants also doubled down on their assertion that the FDCPA did not authorize this action. That motion was also denied. United States v. Bedi (“Bedi II”), 2019 WL 356546 (N.D.N.Y. Jan. 28, 2019). Bedi II reiterated this Court’s prior conclusion that the Second Circuit’s decision in E.D.P. permitted the Government to use the FDCPA to pursue the back pay awarded to Ingvarsdottir. Id. at *3. After concluding the controlling law was “not fundamentally uncertain but simply unfavorable to defendants,” Bedi II denied defendants’ motion for §1292(b) certification. Id. at *4 & n.3. On February 13, 2019, defendants answered the Government’s complaint and asserted a counterclaim under the APA. According to defendants’ counterclaim, Bedi was denied his constitutional rights during the DOL administrative proceeding because he “was not permitted to be physically present at, nor provided with electronic or other access to, the hearing.” Dkt. No. 36. After multiple mediation sessions failed to produce a negotiated result, the Government filed a copy of the administrative record and the parties cross-moved for summary judgment. Those motions have been fully briefed and will be decided on the basis of the submissions without oral argument. II. BACKGROUND The Immigration and Nationality Act (“INA”) allows certain non-immigrant aliens to be admitted into the United States on a temporary basis to perform work in speciality occupations. 8 U.S.C. §§1101(a)(15)(H)(i)(b), 1182(n). Among other things, the INA requires an employer seeking to hire a non-immigrant worker to submit to the DOL a Labor Condition Application (“LCA”). §1184(n)(1). This LCA must specify the dates of the worker’s employment and the wage the employer has agreed to pay. 20 C.F.R. §655.730(c)(4). The employer must also attest that it will pay the greater of the “prevailing” or the “actual” wage, with the greater of the two being the “required wage.” 20 C.F.R. §§655.730(d)(1), 655.731(a). After the DOL certifies the LCA, the employer is required to submit for approval a non-immigrant visa petition to the United States Citizenship and Immigration Services. 20 C.F.R. §655.700(b)(2). The Secretary of Labor has adopted regulations governing the enforcement of employers’ LCA attestations, and has delegated broad enforcement authority to the Administrator of the DOL’s Wage and Hour Division (“WHD”). 8 U.S.C. §1182(n)(2)(a); 20 C.F.R. §§655.705(a)(2), 655.805(a)(2). Among other things, the Administrator is authorized to investigate and determine whether an H-1B employer has failed to pay required wages. During the time period relevant here, Datalink was a corporation that sold and serviced computers out of a storefront in Mount Kisco, New York. Pl.’s Rule 7.1(a)(3) Statement (“Pl.’s Facts”), Dkt. No. 58-2 at 3; see also Administrative Record (“AR”), Dkt. No. 49 at 498, 1218.1 Bedi was Datalink’s President and its sole shareholder. Pl.’s Facts 4; AR at 498. At some point in late 1999 or early 2000, Bedi hired Ingvarsdottir, a native of Iceland, to speak with customers and to handle administrative work. Pl.’s Facts 5. Ingvarsdottir worked under Bedi’s sole and direct supervision. Id. 6; AR at 675-76. On March 1, 2005, Bedi, in his capacity as President and on behalf of Datalink, signed an LCA in which he attested that Datalink would pay Ingvarsdottir an annual salary of at least 61,152 to work as an “Account Executive” until May of 2008. Pl.’s Facts 7; AR at 499, 1255-58; see also Defs.’ Rule 7.1(a)(3) Statement (“Defs.’ Facts”), Dkt. No. 59-2 at 1. After the DOL certified this first LCA, Datalink received approval for Ingvarsdottir’s H-1B visa. Pl.’s Facts
8-9; AR at 499, 1252. On May 8, 2008, Bedi, in his capacity as President and on behalf of Datalink, signed a second LCA in which he attested that Datalink would pay Ingvarsdottir an annual salary of at least $59,717, this time to work as an “International Account Executive,” until May of 2011. Pl.’s Facts 10; AR at 499, 1264-67. Af ter the DOL certified this second LCA, Datalink received approval to extend Ingvarsdottir’s H-1B visa for three more years. Pl.’s Facts
