06/11/2008 10:44:00 AM EST
James E. Pfander on Payment of Back Wages to Alien Physicians Hired Under H-1B Visa Program, 32 Op. O.L.C. 1, 2008 OLC LEXIS 1 (OLC 2008) (Feb. 11, 2008)
The H-1B visa program requires employers to pay at least the prevailing wage level in the community in which employees work. The Department of Veterans Affairs (VA) hired eleven alien physicians to staff VA hospitals but refused to pay the prevailing wage. Thereafter, the physicians obtained a backpay award from the Department of Labor (DOL), and the VA sought advice from the Office of Legal Counsel (OLC) as to whether it was obligated to comply with the DOL order. Professor James E. Pfander, reporter/consultant to the Federal-State Jurisdiction Committee of the Judicial Conference of the United States and American Law Institute member, points out serious problems with the OLC’s conclusion that sovereign immunity prevented the H-1B nonimmigrant physicians from enforcing the backpay award. He writes:
OLC concluded that the principles of sovereign immunity governed the analysis of the VA obligation. In particular, the OLC opinion noted that the Supreme Court has long held that the doctrine of sovereign immunity blocks the courts of the United States from exercising jurisdiction over claims against the federal government unless Congress adopts a statute clearly waiving the government’s immunity and authorizing the suit to go forward. . . .
Turning to an analysis of the relevant statutes, OLC concluded that the requisite clear statement was missing. In particular, OLC found that, while the VA was clearly an employer entitled to participate in the H-1B visa program, Congress had failed to make it crystal clear that federal government employers were obliged to pay back pay pursuant to the prevailing wage rules that govern other employers who take advantage of that program. Unlike private employers, who would be bound by the DOL ruling, the VA (like other federal government agencies, presumably) could thus withhold back pay.
. . . .
One can identify problems, both theoretical and practical, with OLC’s uncritical extension of the clear-statement doctrine to the resolution of disputes between agencies of the federal government. The cases cited in the OLC opinion apply the doctrine of federal sovereign immunity to suits brought in federal court by individuals against an agency of the federal government. The cases do not suggest that the clear-statement rule also applies to the very different context of an out-of-court dispute between federal agencies. As a general matter, sovereign immunity applies to judicial proceedings, and even there, it does not apply to disputes between jural equals. Thus, states can claim immunity from federal lawsuits by individuals, but cannot claim a similar immunity from suits brought either by the federal government or by a sibling state. By the same token, disputes between two coordinate agencies of the executive branch should not implicate sovereign immunity. With a “sovereign” federal agency on both sides of the dispute, no offense to the dignity of either claimant should arise.
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