Greater Missouri Medical Pro-Care Providers, Inc. v. Perez

United States Court of Appeals
For the Eighth Circuit
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No. 14-3717
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Greater Missouri Medical Pro-Care Providers, Inc.

lllllllllllllllllllll Plaintiff - Appellant

v.

Thomas E. Perez; United States Department of Labor; Administrator; Wage and
Hour Division

lllllllllllllllllllll Defendants - Appellees
____________

Appeal from United States District Court
for the Western District of Missouri - Joplin
____________

Submitted: September 22, 2015
Filed: December 14, 2015
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Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.
____________

RILEY, Chief Judge.

Greater Missouri Medical Pro-Care Providers, Inc. (GMM) provides physical
and occupational therapists to serve in hospitals, nursing homes, and similar facilities.
GMM appeals the district court’s decision to uphold a final decision and order of the
United States Department of Labor (DOL) Administrative Review Board (ARB) that
found GMM violated several provisions of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1101 et seq., relating to the H-1B visa1 program, and awarded
damages and interest to some GMM workers. Having jurisdiction under 28 U.S.C.
§ 1291, we reverse.

I. BACKGROUND
GMM hired physical and occupational therapists from the Philippines through
the H-1B program for temporary foreign workers. As part of the H-1B process, GMM
filed numerous labor condition applications (LCAs) with the Secretary of Labor
(Secretary) for the workers GMM wanted to hire. In the LCAs, GMM agreed to
provide prescribed wages and working conditions for its H-1B employees. See
8 U.S.C. § 1182(n)(1)(D); 20 C.F.R. §§ 655.730-.733.

The INA and the implementing regulations require H-1B employers like GMM
to pay certain wages when an H-1B employee becomes “available for work or
otherwise comes under the control of the employer, such as by waiting for an
assignment, reporting for orientation or training, going to an interview or meeting with
a customer, or studying for a licensing examination.” 20 C.F.R. § 655.731(c)(6)(i);
see also 8 U.S.C. § 1182(n)(1)(A)(i)(II). Employers must pay prescribed wages to
employees in a “nonproductive status due to a decision by the employer (e.g., because
of lack of assigned work), lack of a permit or license, or any other [unexcepted]
reason,” 20 C.F.R. § 655.731(c)(7)(i)—a decision referred to as “benching”—and
cannot require employees to pay for the employer’s attorney fees, costs, or other
business expenses incurred filing LCAs and H-1B petitions, 8 U.S.C.
§ 1182(n)(2)(C)(vi)(II); 20 C.F.R. § 655.731(c)(9)(ii), (iii)(C). And an employer may
not impose a penalty for early termination but, under certain conditions, may receive

1
The H-1B visa takes its name from 8 U.S.C. § 1101(a)(15)(H)(i)(b), which
defines a class of non-immigrant alien workers eligible to work in the United States
temporarily to perform services in “specialty occupations.”

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“bona fide liquidated damages” from an H-1B employee who leaves employment
before an agreed upon date. 20 C.F.R. § 655.731(c)(10)(i)(A), (B).

Under 8 U.S.C. § 1182(n)(1), the Secretary reviews the LCAs an H-1B
employer has filed “only for completeness and obvious inaccuracies” and, in the
absence of any such deficiencies, must certify the LCA within seven days of filing.2
Thus, the INA generally does not permit the Secretary to challenge the employer’s
attestations in an LCA, nor does the INA otherwise contemplate a comprehensive pre-
certification review. See id. § 1182(n). Instead, the INA generally provides four
situations for initiating an investigation of potential violations: (1) investigations
based on a complaint from an “aggrieved person or organization,” id. § 1182(n)(2)(A);
(2) “case-by-case . . . random investigations” of an employer within five years of a
prior willful violation, id. § 1182(n)(2)(F); (3) investigations where the Secretary
“personally certif[ies]” he “has reasonable cause to believe that the employer is not
in compliance with [subsection (n)],” id. § 1182(n)(2)(G)(i); and (4) investigations
based on “specific credible information” of a willful violation of certain requirements
from a reliable source, id. § 1182(n)(2)(G)(ii).

On June 22, 2006, Alena Gay Arat, one of GMM’s H-1B therapists from the
Philippines, filed a complaint with Missouri state regulators alleging GMM had
violated several H-1B requirements. Specifically, Arat alleged she paid all of the fees
to file and extend her H-1B visa, including attorney fees. Arat complained, “My
Employer . . . made me and the rest of us (therapist) [sic] stay[] in a company-paid
apartment to review for [a licensing exam] and during that non-productive period, my
employer just gave US$50.00 per week for food allowance.” Noting she arrived in
the United States on February 21, 2005, but did not work until May 6, 2005, Arat

2
Although the Secretary has delegated the authority to investigate and enforce
the H-1B program requirements to the Administrator of the Wage and Hour Division,
see 20 C.F.R. §§ 655.715, 655.800(a), we refer to the Secretary as used in 8 U.S.C.
§ 1182(n).

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alleged GMM did not pay her promised salary until Arat passed the exam and
obtained her license. Arat also questioned whether the fee GMM proposed to recover
for “breach of contract” upon Arat’s early termination of her employment contract
was legal.

The state regulators forwarded Arat’s complaint to the DOL, which treated it
as an “aggrieved party” complaint. See 8 U.S.C. § 1182(n)(2)(A). After reviewing
the complaint, DOL investigator Erica Simon concluded the Secretary had “reasonable
cause” to investigate the charge that GMM “[r]equired or attempted to require [Arat
to pay] a penalty for ceasing” her employment early. Simon initiated an investigation
on July 18, 2006, later explaining that date was “when we knew we had a potentially
valid complaint, something that we would have a reasonable cause to move forward
with.” In accordance with the DOL’s standard practice for all H-1B investigations,
Simon initiated a “full investigation under the H-1B provisions of the IMA [sic]” “to
see if there [we]re violations to any employee during [the relevant] time period.”

On August 4, 2006, Simon sent GMM a “standard” DOL form letter notifying
GMM it had “been scheduled for investigation under [the H-1B LCA] provisions”
and, per the Secretary’s standard practice, requesting all of GMM’s H-1B documents
and records, including LCAs for all of GMM’s H-1B employees. Based on the sole
allegation that GMM improperly attempted to collect an early termination penalty
from Arat, the Secretary demanded sixteen different subcategories of evidence related
to GMM’s H-1B program and its H-1B employees. The Secretary’s request for
information did not mention Arat’s allegations or otherwise indicate the Secretary’s
comprehensive investigation was based on an aggrieved-party complaint. In addition
to obtaining GMM’s payroll and other records, Simon interviewed Arat and other
H-1B workers as well as representatives of GMM.

Based on Simon’s investigation, the Secretary decided GMM violated the INA.
Among other things, the Secretary concluded GMM (1) improperly failed to pay

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required wages to employees GMM had placed in nonproductive status, including
employees studying to obtain occupational licenses; (2) made improper deductions
from employee wages for attorney and H-1B petition fees; and (3) “required or
attempted to require” improper penalty payments for early termination from some
employees. The Secretary ordered GMM to pay $372,897.93 in back wages to forty-
four employees—later amended to $382,889.87 to forty-five employees.

GMM timely requested a hearing before an administrative law judge (ALJ), and
GMM and the Secretary filed cross-motions for summary judgment. Among other
things, GMM argued “[t]he applicable statute and regulation limit an aggrieved-party
complaint to the specific issues of the Complaint and to the aggrieved party’s LCA.”
On October 23, 2009, the ALJ granted partial judgment to the Secretary, opining
“[n]othing in the [INA] or its implementing regulations supports GMM’s theory that
the [Secretary] is limited in investigatory power to a specific complainant and his or
her complaints.” The ALJ decided the Secretary’s broad investigation of GMM was
within his statutory and regulatory authority.

The ALJ also rejected GMM’s argument that “[t]he applicable statute and
regulation impose a 12-month time limit for investigating violations outside of twelve
months prior to the filing of a complaint.” The ALJ reasoned, “While it is true that
an aggrieved party must file a complaint within one year of the last violation or
misrepresentation, the regulations make clear that this is a jurisdictional bar only to
the filing of a complaint, and it does not limit the scope of remedies.” Deciding there
were “no genuine issues of material fact” as to whether GMM failed to pay required
wages to some employees during nonproductive employment and made improper
deductions from employee wages, the ALJ granted judgment to the Secretary on those
issues and set a hearing to consider “[a]dditional proof regarding which H-1B
employees were affected by” GMM’s violations and the proper remedies for those
violations. The ALJ also determined GMM illegally withheld some employees’
paychecks.

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 After the hearing, the ALJ issued a decision ordering GMM to pay
(1) $338,042.19 of back wages to forty employees for benching violations;
(2) $8,160.00 to seventeen employees for illegal fee deductions; and (3) $8,284.23 to
four employees for illegally withholding paychecks. The ALJ also awarded pre- and
post-judgment interest on the awards. The ALJ ultimately did not find GMM had
attempted to collect an improper penalty from Arat—the sole allegation that prompted
the Secretary’s comprehensive review of GMM’s H-1B practices.

GMM petitioned the ARB for review, which affirmed in part and reversed in
part over a partial dissent by one board member. Like the ALJ, the ARB decided the
Secretary’s aggrieved-party complaint investigation was not limited to timely
allegations in the complaint. “Based on the plain language of the statute and
regulations, [ARB] precedent, and a broad reading of the relevant legislative and
regulatory history,” the ARB held “that the [Secretary] had the authority to investigate
alleged INA violations involving H-1B workers who did not file complaints.” The
ARB also affirmed the ALJ’s interest award. However, the ARB reversed “the ALJ’s
finding that discrete violations occurring outside a twelve-month period prior to the
filing of a complaint are actionable.” Upholding the award of back pay as a remedy
for violations that continued into the relevant twelve-month period, the ARB reduced
the award for benching violations to $106,785.85.

The dissent agreed with the ARB’s decision to uphold Arat’s award and
acknowledged the Secretary’s discretionary authority to expand an aggrieved-party
investigation under other statutory and regulatory provisions. But the dissent would
have reversed the rest of the award because the dissent agreed with GMM that the
Secretary’s investigation into matters outside the complaint exceeded the Secretary’s
authority under § 1182(n)(2)(A). The dissent first disputed the suggestions in the
ARB decision that (1) Arat’s complaint alleged INA violations involving other GMM
employees, and (2) the Secretary’s investigation into other possible violations was
based on information Arat provided. The dissent found Arat’s allegations, when taken

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in context, were clearly exclusive to her. In light of what the dissent saw as Arat’s
focus on herself, the dissent concluded the Secretary had no authority under
§ 1182(n)(2)(A) to expand the aggrieved-party investigation to include all of GMM’s
H-1B employees because the Secretary “independently obtained” the information
about other potential violations “during the course of its investigation into Arat’s
complaint.”

In contrast to the broad investigatory powers the ARB authorized under the
aggrieved-party provisions, the dissent determined the INA required that if the
Secretary received credible information of other potential violations in the course of
an existing investigation, the Secretary should expand the inquiry by initiating a
credible-information/reliable-source investigation under § 1182(n)(2)(G)(ii) and
20 C.F.R. § 655.807. Because the Secretary did not comply with the requirements in
those provisions when investigating GMM for violations toward employees other than
Arat, the dissent reasoned any award based on the results of this expanded
investigation exceeded the Secretary’s authority.

GMM appealed the ARB’s decision to the district court pursuant to its right of
review under the Administrative Procedure Act (APA). See 5 U.S.C. § 702. On
cross-motions for summary judgment, the district court upheld the award based on
what it viewed as the Secretary’s reasonable interpretation of § 1182(n)(2)(A). Noting
GMM did not dispute the violations, the district court agreed with the ARB that Arat’s
complaint sufficiently alleged INA violations as to other GMM H-1B employees
during the relevant time period and the Secretary’s investigation was within the
authority granted by § 1182(n)(2)(A). The district court also affirmed the award of
interest. GMM appeals.

II. DISCUSSION
A. Standard of Review
We review de novo the district court’s determination that the ARB’s order did
not violate the APA. See McClung v. Paul, 788 F.3d 822, 828 (8th Cir. 2015). We

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also “review de novo a district court’s findings and conclusions regarding the
correctness of an agency’s statutory interpretations.” Harmon Indus., Inc. v. Browner,
191 F.3d 894, 897 (8th Cir. 1999). We must “decide all relevant questions of law,
interpret constitutional and statutory provisions, and determine the meaning or
applicability of the terms of an agency action.” 5 U.S.C. § 706.

Section 706 further provides, in part, that we shall

(2) hold unlawful and set aside agency action, findings, and conclusions
found to be–

(A) arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right;

(D) without observance of procedure required by law; [or]

(E) unsupported by substantial evidence.

B. Limited Scope of an Initial Aggrieved-Party Complaint Investigation
This appeal requires us to consider the proper scope of the Secretary’s initial
investigation in response to an aggrieved-party complaint under § 1182(n)(2)(A).
“We begin with the statute’s language.” Muscarello v. United States, 524 U.S. 125,
127 (1998). “And where the statutory language provides a clear answer, [we] end[]
there as well.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999); accord
Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (“If
the intent of Congress is clear, that is the end of the matter; for the court, as well as
the agency, must give effect to the unambiguously expressed intent of Congress.”).
“[W]hen deciding whether the language is plain, we must read the words ‘“in their

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context and with a view to their place in the overall statutory scheme.”’” King v.
Burwell, 576 U.S. ___, ___, 135 S. Ct. 2480, 2489 (2015) (quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)).

By its terms, § 1182(n)(2)(A) requires the Secretary to

establish a process for the receipt, investigation, and disposition of
complaints respecting [an employer’s] failure to meet a condition
specified in an [LCA] or [an employer’s] misrepresentation of material
facts in such an application. . . . No investigation or hearing shall be
conducted on a complaint concerning such a failure or misrepresentation
unless the complaint was filed not later than 12 months after the date of
the failure or misrepresentation, respectively. The Secretary shall
conduct an investigation under this paragraph if there is reasonable cause
to believe that such a failure or misrepresentation has occurred.

The Secretary has taken an extremely broad view of his authority under
§ 1182(n)(2)(A).

Taking the twelve-month time limitation first, we note that in urging the ARB
to affirm the damage award for discrete violations that occurred before the twelve-
month period specified in § 1182(n)(2)(A), the Secretary argued the statutory and
regulatory requirements were met as long as just one claim fell within the twelve-
month period. The ARB rejected the Secretary’s expansive interpretation, deciding
“[t]he plain meaning of the[] statutory and regulatory provisions dictate [sic] a finding
that any LCA violations which occurred more than a year before Arat filed her
complaint are not actionable” under § 1182(n)(2)(A). The Secretary does not
challenge that sensible conclusion on appeal.

The Secretary’s view of his substantive authority to investigate an aggrieved-
party complaint under § 1182(n)(2)(A) is just as broad. As the Secretary sees it, a
finding of reasonable cause to investigate just one allegation by an aggrieved party

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automatically justifies a comprehensive investigation of the employer as a whole and
“authorize[s] DOL to inquire into other LCAs and the employer’s statutory [and
regulatory] compliance with the [H-1B] program in general.” That is, reasonable
cause to investigate any single violation alleged by an aggrieved party “establishes a
reasonable cause to investigate the employer” and every action the employer has taken
with respect to the H-1B program and its H-1B employees.3 The breadth of the
Secretary’s interpretation is evidenced by Simon’s testimony that the Secretary’s
standard practice is to conduct a “full investigation” “[e]very time” the DOL does “an
investigation of any sort under H1-B,” “to determine if any violations exist under H1-
B” and “to see if there are violations to any employee during” the relevant time
period.

The Secretary’s expansive understanding of his investigatory authority is
inconsistent with the plain language and structure of § 1182(n). The Secretary speaks
of “reasonable cause to investigate the employer” and the employer’s overall
compliance with the H-1B program, but § 1182(n)(2)(A) does not grant the Secretary
authority to investigate in those terms. Rather than authorize an open-ended
investigation of the employer and its general compliance without regard to the actual
allegations in the aggrieved-party complaint, § 1182(n)(2)(A) expressly ties the
Secretary’s initial investigatory authority to the complaint and those specific
allegations “respecting [an employer’s alleged] failure to meet a condition specified
in an [LCA] or [an employer’s] misrepresentation of material facts in such an [LCA]”
for which the Secretary finds “reasonable cause to believe” the employer committed
the alleged violation. See also 20 C.F.R. § 655.806(a)(2) (“The [aggrieved-party]
complaint shall set forth sufficient facts for the [Secretary] to determine whether there
is reasonable cause to believe that a violation as described in § 655.805 has been

3
The Secretary asserts in his brief, “The statute makes an aggrieved party
complaint a sufficient condition for initiating an investigation, . . . [and] nothing limits
DOL’s ability to inquire into the employer’s statutory compliance in general.” We
disagree.

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committed, and therefore that an investigation is warranted.”). Read naturally, the
Secretary’s authority to conduct an initial investigation under § 1182(n)(2)(A) is based
upon the Secretary finding reasonable cause to believe the employer’s specific
misconduct as alleged in the complaint violates the INA.4 That reasonable-cause
finding limits the scope of the initial investigation.

To illustrate the discord between the statutory text and the Secretary’s broad
interpretation, we must look no further than the alternative avenues of investigation
in § 1182(n)(2). First consider § 1182(n)(2)(F). In contrast to § 1182(n)(2)(A)’s
limited focus on the particular misconduct alleged in the complaint, § 1182(n)(2)(F)
authorizes the Secretary, “on a case-by-case basis, [to] subject an employer [who has
willfully violated the statute] to random investigations for a period of up to 5 years”
and clarifies “[t]he authority of the Secretary under this subparagraph shall not be
construed to be subject to, or limited by, the requirements of subparagraph (A).”
(Emphasis added). Similarly, § 1182(n)(2)(G)(i) authorizes the Secretary to
investigate “any [H-1B] employer . . . if the Secretary . . . has reasonable cause to
believe that the employer is not in compliance with this subsection,” provided the
Secretary “personally certif[ies] that reasonable cause exists and . . . approve[s]
commencement of the investigation.” (Emphasis added).

Had Congress intended to authorize (1) a comprehensive investigation of the
employer in § 1182(n)(2)(A) based on a single allegation in an aggrieved-party
complaint like it did in § 1182(n)(2)(F) based on past violations, or (2) a general
compliance review of the employer like it did in § 1182(n)(2)(G)(i), “Congress could

4
We do not question the Secretary’s determination that an aggrieved party can
raise allegations on behalf of others, either individually or by class, but that
conclusion does not alter the proper scope of the Secretary’s initial aggrieved-party
complaint investigation, which still depends on the allegations in the complaint and
the Secretary’s reasonable-cause determination whether “such a failure or
misrepresentation has occurred.” 8 U.S.C. § 1182(n)(2)(A).

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easily have said so.” Kucana v. Holder, 558 U.S. 233, 248 (2010). It did not. Indeed,
the Secretary’s current standard practice has the practical effect of converting every
aggrieved-party complaint into a comprehensive compliance review without the
procedural safeguards of § 1182(n)(2)(G)(i). Neither the plain language of the statute
nor reason permits that practice.

Ignoring what Congress has actually said, the Secretary proposes “[t]he statute
is silent on the scope of [the Secretary]’s authority to investigate aggrieved party
complaints,” leaving “a gap for the agency to fill.” See Chevron, 467 U.S. at 843
(“[I]f the statute is silent or ambiguous with respect to the specific issue, the question
for the court is whether the agency’s answer is based on a permissible construction of
the statute.”). But § 1182(n)(2)(A) is not silent on the scope of the Secretary’s
investigation. While the statute does empower the Secretary to “establish a process
for the receipt, investigation, and disposition of [aggrieved-party] complaints,” the
statute does not grant the Secretary unlimited discretion to investigate such complaints
and authorize the comprehensive initial investigation of the employer and its general
compliance that the Secretary currently conducts in every case regardless of the
allegations in the complaint. Id. Put simply, § 1182(n)(2)(A) authorizes the Secretary
to investigate aggrieved-party complaints, yet the Secretary claims authority to
investigate far more. The Secretary’s initial authority to investigate an aggrieved-
party complaint is unambiguously limited by the plain meaning of § 1182(n)(2)(A)
to those timely allegations in the complaint for which the Secretary has found
reasonable cause to investigate.

We recognize additional violations may come to light during a lawfully initiated
and properly limited aggrieved-party complaint investigation, and the Secretary may
be right that it could become necessary to modify or expand such an investigation as
it develops—presumably based on reasonable cause. See id. § 1182(n)(2) (requiring
reasonable cause to investigate in the absence of prior willful violations). But we need
not address those issues here because that is not what happened in this case. The

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Secretary’s comprehensive initial investigation of GMM pursuant to the Secretary’s
standard practice exceeded his statutory authority from the outset. Simon testified the
only allegation in Arat’s aggrieved-party complaint for which she found reasonable
cause to investigate was the charge that GMM may have required Arat to pay an
improper penalty for early termination. Based on that single allegation and despite her
very narrow reasonable cause determination, Simon—asserting the expansive
investigatory authority under § 1182(n)(2)(A) that the Secretary has claimed
throughout this case—launched a comprehensive review of GMM, its general H-1B
compliance, and all of its H-1B employees. Section 1182(n)(2)(A) did not authorize
such a sweeping investigation.

We also are not persuaded by the Secretary’s plea that enforcing the plain
textual limitation on the Secretary’s initial aggrieved-party complaint investigation
will somehow force the Secretary to “ignore” “violations in addition to those alleged
by the aggrieved party” that the Secretary discovers “through an inspection of the
employer’s documents.” Although we offer no opinion on the Secretary’s authority
to investigate potential violations discovered in the course of a properly limited
aggrieved-party complaint investigation and, to borrow the ARB’s language, do not
pretend to “dictate the exact contours of” an aggrieved-party investigation, we are
satisfied our decision does not require the Secretary to ignore other potential
violations it discovers in the course of a lawful investigation.

Indeed, § 1182(n) and the supporting regulations authorize several alternative
avenues of investigation. First, information from additional aggrieved parties could
provide the basis for additional complaints and investigations. Section 1182(n)(2)(B)
contemplates “similar [aggrieved-party] complaints respecting the same” employer
and permits the Secretary to consolidate the hearings for those claims. Next, as noted
above, § 1182(n)(2)(G)(i) permits the Secretary to initiate a compliance review of the
type the Secretary conducted here, provided the Secretary “personally certif[ies] that
reasonable cause exists” and approves the investigation. Finally, as examined by the

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ARB dissent, § 1182(n)(2)(G)(ii) and 20 C.F.R. § 655.807 authorize the Secretary to
investigate certain types of alleged violations when the Secretary receives credible
information about such violations from a reliable source, which could include
information discovered in the course of a lawful DOL investigation.

Under § 1182(n)(2)(G)(ii), the Secretary has authority to investigate if he

receives specific credible information from a source who is likely to have
knowledge of an employer’s practices or employment conditions, or an
employer’s compliance with the employer’s [LCA], and whose identity
is known to the Secretary of Labor, and such information provides
reasonable cause to believe that the employer has committed a willful
failure to meet a condition of paragraph (1)(A), (1)(B), (1)(C), (1)(E),
(1)(F), or (1)(G)(i)(I), has engaged in a pattern or practice of failures to
meet such a condition, or has committed a substantial failure to meet
such a condition that affects multiple employees.

Clause (iv) provides

Any investigation initiated or approved by the Secretary of Labor under
clause (ii) shall be based on information that satisfies the requirements
of such clause and that

(I) originates from a source other than an officer or employee of
the Department of Labor; or

(II) was lawfully obtained by the Secretary of Labor in the course
of lawfully conducting another Department of Labor investigation
under this chapter o[r] any other Act.

Id. § 1182(n)(2)(G)(iv) (emphasis added) (footnote omitted).

The Secretary asserts § 1182(n)(2)(G)(ii) does not apply to an aggrieved-party
complaint investigation, maintaining there is “no reason to read the statute to bifurcate

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th[e] investigation process simply because [the Secretary] come[s] across additional
information during the course of a lawfully conducted [and] lawfully initiated
investigation.” But the Secretary fails to explain why information obtained during an
aggrieved-party complaint investigation is necessarily excluded from
§ 1182(n)(2)(G)(iv)(II) despite the statutory language there expressly stating
information obtained during another DOL investigation can constitute credible
information from a reliable source. That § 1182(n)(2)(G)(iv)(II) also might apply in
other circumstances does not preclude its application when credible information about
additional violations is obtained during an aggrieved-party complaint investigation.

GMM, on the other hand, asserts Ҥ 1182(n)(2)(G)(ii)-(iv) and the regulations
applicable to [a] credible information-reliable source investigation” stand at the ready
to provide “the very authority needed” to expand an ongoing aggrieved-party
complaint investigation and permit the Secretary to consider any additional
“information as to other possible violations or other employees” the Secretary might
uncover in the course of such an investigation. According to GMM, by enacting
§ 1182(n)(2)(G)(ii)-(iv), “Congress set forth a clear process applicable when an
investigation reveals information beyond the original investigation’s scope.”

GMM may be right to a point, but closer examination of the statute reveals
§ 1182(n)(2)(G)(ii) would not necessarily cover all of the potential H-1B violations
the Secretary might discover during an aggrieved-party complaint investigation.
Section 1182(n)(2)(G)(ii) applies to an employer’s (1) willful failures to meet certain
conditions; (2) “pattern or practice of failures to meet such a condition”; and
(3) “substantial failure to meet such a condition that affects multiple employees.”
This subsection—which may apply to certain violations, but not others—is not the
clear and all-inclusive path of expansion GMM proposes.

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 At any rate, we need not determine the applicability of § 1182(n)(2)(G)(ii), if
any, to this case, nor examine the contours of the Secretary’s extensive investigation
into GMM’s general H-1B compliance and all its H-1B employees. We need only
compare the sweeping scope of the Secretary’s initial aggrieved-party complaint
investigation with the narrow finding of reasonable cause to investigate just one
personal allegation in Arat’s complaint to see the Secretary exceeded his statutory
authority in this case from the beginning. See id. § 1182(n)(2)(A); cf. United States
v. Morton Salt Co., 338 U.S. 632, 652 (1950) (“Of course a governmental
investigation into corporate matters may be of such a sweeping nature and so
unrelated to the matter properly under inquiry as to exceed the investigatory power.”).

Because the ARB’s findings of violations and the resulting awards were based
entirely on the Secretary’s unauthorized investigation of matters other than the
allegation GMM penalized Arat for quitting before her contract ran out, the awards
cannot stand.

III. CONCLUSION
We reverse the judgment of the district court and remand for further
proceedings consistent with this opinion.
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