UNITED STATES OF AMERICA v. Bedi et al

Filing 68

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED that the Government's # 58 MOTION for Summary Judgment is GRANTED; it is further ORDERED that the Defendant's # 59 MOTION for Summary Judgment is DENIED; it is further ORDERED th at Defendant's APA counterclaim is DISMISSED. Defendants are jointly and severally liable for $340,987.43 in back wages, plus pre- and post- judgment interest; and the Government shall submit for consideration, on or before April 20, 2020, a proposed judgment that adequately sets forth any applicable interest calculations, and the date or dates which any such calculations should run. Signed by Judge David N. Hurd on 4/8/2020. (pjh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------UNITED STATES OF AMERICA,
Plaintiff,
-v-

1:17-CV-1168

VICKRAM BEDI, President,
and DATALINK COMPUTER
PRODUCTS, INC.,
Defendants.
----------------------------------VICKRAM BEDI, President,
and DATALINK COMPUTER
PRODUCTS, INC.,
Counter-Claimants,
-vUNITED STATES OF AMERICA,
Counter-Defendant.
----------------------------------APPEARANCES:

OF COUNSEL:

HON. GRANT C. JAQUITH
United States Attorney for the
Northern District of New York
Attorneys for Plaintiff
100 South Clinton Street, Room 900
Syracuse, NY 13261

MARY E. LANGAN, ESQ.
Ass't United States Attorney

U.S. DEPARTMENT OF LABOR
Office of the Solicitor
Attorneys for Plaintiff
201 Varick Street, Room 983
New York, NY 10014

JASON E. GLICK, ESQ.
Special Ass't United States Attorney

CARTER, LEDYARD LAW FIRM
Attorneys for Defendants
2 Wall Street
New York, NY 10005

ALAN S. LEWIS, ESQ.
LEONARDO TRIVIGNO, ESQ.

DAVID N. HURD
United States District Judge
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.

-2-

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

-3-

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).
-4-

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

1

Pagination is sequential and corresponds with CM/ECF.
-5-

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 ¶¶ 11-12; AR at 499, 1261.
The problem is that Bedi and Ingvarsdottir were not just running a legitimate computer
business. They were also engaged in a years-long scheme to defraud a wealthy Datalink
client by, inter alia, selling him unnecessary services at outrageous prices. Defs.' Facts ¶ 2;
AR at 502, 708-11, 1391. Things finally came to a halt in November of 2010, when Bedi and
Ingvarsdottir were charged in state court with grand larceny. Defs.' Facts ¶ 3; see also
People v. Ingvarsdottir, 2013 WL 12097312 (N.Y. Sup. Ct. Apr. 19, 2013). Both parties later
pleaded guilty for this misconduct, and Bedi was sentenced to a period of imprisonment for
his role in the scheme. Defs.' Facts ¶¶ 4-6; AR at 502.
On March 23, 2012, Ingvarsdottir filed an administrative complaint with the WHD
Administrator alleging that she had "receiv[ed] virtually no wages" from Datalink for her work
"from 2005 to 2010." Pl.'s Facts ¶ 13; AR at 1630-31. Ingvarsdottir's wage complaint
acknowledged she "did not work after Nov[ember of] 2010," the month in which she was
arrested, but alleged "there was not an effective termination and therefore non-productive
wages [were] due until the end of the" second LCA's period of employment. Id.
On August 6, 2012, the WHD Administrator issued a written determination based on
its investigation into Ingvarsdottir's wage complaint. Pl.'s Facts ¶ 14; AR at 937-40. As
relevant here, the WHD determined that Datalink and Bedi failed to pay Ingvarsdottir in
accordance with the provisions set out in the H-1B visa program and assessed back wages
in the amount of $237,066.06. AR at 937. The Administrator directed defendants to submit
to the DOL a check for the net amount of wages due within fifteen calendar days. AR at
-6-

937-38; Defs.' Facts ¶ 7. Otherwise, the decision warned defendants that interest,
administrative charges, and other penalties would be assessed on top of the total amount
due. AR at 938.
In separate letters dated August 17, 2012, both parties requested a hearing before a
DOL administrative law judge. Pl.'s Facts ¶ 16; AR at 1604-13. After the matter was
assigned to ALJ Lystra Harris ("ALJ Harris"), the treasurer for Datalink2 requested an
adjournment. Pl.'s Facts ¶¶ 17-18; AR at 1573-80. According to defendants' written
submission, Bedi would be unavailable to participate in the proceedings until September of
that year and, in any event, they needed more time to obtain legal counsel. AR at 1673-74.
Counsel for Ingvarsdottir objected, pointing out that Datalink's adjournment request
omitted a particularly salient fact: Bedi would almost certainly still be unavailable to
participate in person by September, since he was due to be sentenced to a term of
imprisonment for his crimes. AR at 1564-67.
Although ALJ Harris did not grant defendants' request, the ALJ did extend certain
deadlines and reset the hearing for later that summer. AR at 1550-51. Thereafter,
defendants obtained attorney Francis O'Reilly as legal counsel, who set to work figuring out
how to ensure that Bedi could participate in the hearing from state prison. AR at 857.
During a pre-hearing conference call on July 11, 2013, Attorney O'Reilly informed ALJ
Harris that he planned for Bedi to participate telephonically:
MR. O'REILLY: Your Honor, as you know, my client is incarcerated
in Cape Vincent, which is basically on the Canadian border of New
York. I may need a subpoena to have him available telephonically.
The New York State Department of Corrections is incredibly

2

Chhaya Bedi, Bedi's mother, is treasurer of Datalink.
-7-

cooperative when it comes to legal process in providing inmates
what they need to address their issues. However, logistically this is
going to be fairly tough.
AR at 840-41; see also Defs.' Facts ¶ 10.
The first day of the hearing took place on July 25, 2013. Pl.'s Facts ¶ 23; AR at 616.
After admitting exhibits, ALJ Harris heard testimony from three witnesses: (1) Alex Linden,
Ingvarsdottir's certified public accountant; (2) Edward Ritz, an investigator for the WHD; and
(3) Ingvarsdottir herself. Pl.'s Facts ¶ 24; AR at 614-721. Bedi was available by phone but
did not participate for this day of the hearing, and therefore was unable to see or hear the
testimony of the three witnesses or to communicate contemporaneously with his attorney
during the proceeding. See Pl.'s Response to Defs.' Facts, Dkt. No. 64-1 at ¶ 11.
However, ALJ Harris did hear argument from the parties about what steps would be
necessary to ensure Bedi a meaningful opportunity to testify by telephone. AR at 650-57.
Ultimately, ALJ Harris chose to reconvene the hearing at a later date specifically for this
purpose, since hard copies of exhibits needed to be delivered to Bedi at the prison for
effective direct and cross-examination. AR at 650-57, 577.
After the DOL issued a subpoena authorizing Bedi's "telephonic testimony," the
hearing reconvened for that purpose on September 17, 2013. Pl.'s Facts ¶¶ 32-33; AR at
456-86. At that time, Bedi testified about a range of matters involving Ingvarsdottir's
employment relationship with Datalink. AR at 456-86.
On August 4, 2014, ALJ Harris issued a thorough written decision finding defendants
jointly and severally liable for unpaid H-1B back wages to Ingvarsdottir. AR at
488-511. Accordingly, the ALJ ordered defendants to pay Ingvarsdottir $341,693.03 plus
pre- and post-judgment interest on the money award. AR at 511.
-8-

Thereafter, defendants petitioned the DOL's Administrative Review Board ("ARB") for
review of ALJ Harris's written decision. AR at 259-72. Represented by new counsel,
defendants raised a host of arguments in this administrative appeal. AR at 146-78. Among
other things, defendants argued that Bedi should not have been held individually liable for
the back pay award. AR at 173-78. Defendants also argued that they had been denied a fair
administrative hearing because of Attorney O'Reilly's ineffective legal assistance. AR at
168-72. Notably, defendants argued that Attorney O'Reilly had failed to adequately prepare
Bedi to give his testimony by telephone from prison. AR at 172.
On February 29, 2016, the ARB rejected these arguments and affirmed ALJ Harris's
decision with one small modification: it reduced the award to account for three days in 2006
that Ingvarsdottir was unavailable to work. AR at 1-8; Defs.' Facts ¶ 9. Applying that
three-day downward adjustment, the ARB assessed an award for $340,987.43, exclusive of
interest. Pl.'s Facts ¶ 1. The Government has demanded payment of this sum, but
defendants have so far refused. Id. ¶ 2; see also Ex. A to Compl. (assessing total alleged
indebtedness of $455,502.97 as of May 15, 2017).
III. LEGAL STANDARD
The entry of summary judgment is warranted when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment is a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED.
R. CIV. P. 56(c)). A fact is "material" for purposes of this inquiry if it "might affect the outcome
of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

-9-

(1986). And a "genuine" dispute of material fact exists "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Id.
"When deciding a summary judgment motion, a court must resolve any ambiguities
and draw all inferences from the facts in a light most favorable to the nonmoving
party." Ward v. Stewart, 286 F. Supp. 3d 321, 327 (N.D.N.Y. 2017) (citation
omitted). Accordingly, summary judgment is inappropriate where a "review of the record
reveals sufficient evidence for a rational trier of fact to find in the [non-movant's]
favor." Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted).
"Where, as here, the parties have cross-moved for summary judgment, a reviewing
court 'must evaluate each party's motion on its own merits, taking care in each instance to
draw all reasonable inferences against the party whose motion is under
consideration.'" Ward, 286 F. Supp. 3d at 327 (quoting Marcano v. City of Schenectady, 38
F. Supp. 3d 238, 246 (N.D.N.Y. 2014) (McAvoy, J.)). "In undertaking this analysis, it bears
noting that 'a district court is not required to grant judgment as matter of law for one side or
the other.'" Id.
IV. DISCUSSION
Although they approach the concept from different angles, the parties' dispute
revolves around the same basic principle: fairness. The Government, for its part, contends
that entering a money judgment against defendants on the final DOL award would be an
equitable result because defendants failed to follow the rules and regulations set out in the
H-1B visa program. Pl.'s Mem., Dkt. No. 58-1 at 19. Defendants, for their part, insist that it
would be unjust to force them to pay Ingvarsdottir as an employee for the time she spent
helping to perpetrate the criminal scheme to defraud. Defs.' Mem., Dkt. No. 59-1 at 6, 9.
- 10 -

Defendants argue that even if the law permitted that bizarre result, the DOL back pay award
would still be unenforceable because it was procured in violation of Bedi's right to be present
at the administrative hearing. Id. at 12.
A. Defendants' Motion
As an initial matter, however, defendants have resurrected their assertion that the
DOL's back wage award is not a "debt owing to the United States" within the meaning of the
FDCPA. Defs.' Mem. at 8-10. This time around, defendants have made a novel attempt to
distinguish the applicability of the Second Circuit's holding in E.D.P. Id. at 9. They argue
that the Second Circuit only let the Government collect the debt owed in E.D.P. because the
federal agency–plaintiff in that case was the "only party entitled to enforce the backpay
award." 6 F.3d at 954. In defendants' view, the reasoning of E.D.P. is inapplicable here
because Ingvarsdottir could have independently pursued certain state court remedies.
This argument must be rejected. As the Government points out, Ingvarsdottir actually
tried to recover in state court, but that forum rejected her claim after concluding that it arose
under federal law. Ingvarsdottir v. Bedi, 2017 WL 1438265 (N.Y. Sup. Ct. Apr. 24,
2017). Even so, it does not matter what Ingvarsdottir herself could or could not do—the
FDCPA independently authorizes the Government to collect on the unsatisfied DOL award
here in this forum for the reasons already stated in Bedi I and Bedi II.
Defendants' second argument again raises the specter of some private employment
arrangement between Datalink, Bedi, and Ingvarsdottir. But it is just as meritless. To be
sure, the FDCPA contains a limited exception for debts arising from purely private
agreements. 28 U.S.C. § 3002(3)(B). And in Bedi I, the Court left open the possibility that
the existence of a separate employment agreement might become relevant later in these
- 11 -

proceedings. 318 F. Supp. 3d at 568. However, defendants have never produced or
identified any private employment agreement with Ingvarsdottir, which as the Government
points out would have needed to be in writing given its alleged multi-year duration. Pl.'s
Facts ¶ 37; see also Pl.'s Opp'n, Dkt. No. 64 at 10 n.4.
Besides, H-1B wages are fixed by statute, not contract, and the employer's violation of
the statute is what matters for a back wage award. See, e.g., AR at 499-500; see also Kutty
v. U.S. Dep't of Labor, 2011 WL 3664476, at *9 (E.D. Tenn. Aug. 19, 2011) ("It does not
matter whether the private contracts were inconsistent with the wages listed in the LCAs.
The [employees'] H-1B wages were set by statute, not by contract . . . . [r]egardless of the
private contracts, [the employer] had to pay the 'required wage' as set forth in the INA.").
Defendants' remaining arguments are no more compelling. Defendants contend that
equitable principles bar the Government from helping Ingvarsdottir unfairly benefit at the
expense of her co-felons. Defendants rely on Everet v. Williams, a bill in equity presented to
the Court of Exchequer in England all the way back in the year 1725, to argue that "courts
have steadfastly refused to adjudicate claims between felons and have repeatedly made
clear that the law leaves quarreling felons with their quarrels." Defs.' Mem. at 11.
Everet v. Williams is known today as The Highwayman's Case, 9 L.Q. REV. 197
(1893), an appellation first bestowed upon the case by an English law journal more than one
hundred years later. Without belaboring the facts underlying the controversy, a robber
sought from his partner in crime an accounting of the profits from their joint criminal
activity. Schlueter v. Latek, 683 F.3d 350, 355 (7th Cir. 2012) (Posner, J.). The court
refused to hear the dispute; instead, both parties were hanged for their crimes. Id.; see also
United States v. Kravitz, 281 F.2d 581, 583 n.3 (3d Cir. 1960).
- 12 -

As Judge Posner explained in Schlueter, the equitable principle to be derived from
The Highwayman's Case is that of in pari delicto, or perhaps unclean-hands, depending on
the precise context in which the defense is raised. 683 F.3d at 355. W hatever the label,
though, "[t]he point is only that a court will not adjudicate a case if a judgment for the plaintiff
would encourage or reward criminal or other unlawful activity." Id.
These equitable defenses do not thwart the Government's FDCPA claim. Courts in
this Circuit generally require a party that tries to raise either of these equitable bars to make a
threshold showing of a counter-party's "egregious" misconduct, or to demonstrate that the
counter-party bears "substantially equal responsibility" for the misconduct. New York v.
United Parcel Serv., Inc., 253 F. Supp. 3d 583, 680-81 (S.D.N.Y. 2017), rev'd in part on other
grounds, 942 F.3d 554 (2d Cir. 2019).
Keeping in mind that the Government, not Ingvarsdottir, is the named plaintiff in this
action, defendants have not shown any "egregious" misconduct attributable to the
Government, nor have they shown that the Government bears "substantially equal
responsibility" for the scheme to defraud. And whether or not the Government stands in
Ingvarsdottir's shoes for purposes of assessing these equitable defenses, defendants'
argument only makes sense if you conflate one type of misconduct; i.e., the conspiracy to
defraud, with a separate type of misconduct that is actually at issue in this case; i.e.,
defendants' violation of the H-1B visa program's wage requirements.
Defendants also claim that Bedi's constitutional rights were violated when he was
excluded from participating in the administrative hearing and forced to testify by
telephone. Defs.' Mem. at 12. According to defendants, this arrangement violated Bedi's

- 13 -

"constitutional right to be present at his hearing." Id. (citing Illinois v. Allen, 397 U.S. 337,
338 (1970)).
This kind of argument fails for a number of independent reasons. First, the Court is
not aware of any blanket constitutional right to be present for a civil hearing, especially an
administrative one. Defendants, citing Illinois v. Allen, invoke the Sixth Amendment for this
proposition. But the Sixth Amendment's Confrontation Clause is about safeguarding the
rights of defendants in criminal proceedings, not civil ones. See, e.g., United States v.
Flores, 985 F.2d 770, 781 (5th Cir. 1993) ("[T]he Confrontation Clause applies only in
criminal prosecutions and protects only the accused."). Defendants have not offered any
reason to conclude the right secured by the Confrontation Clause is applicable at all, much
less co-extensive in scope, in the context of a civil administrative proceeding that resulted in
an award of money damages.
As the Government points out, defendants are probably looking for the Fifth
Amendment's Due Process Clause, which commands that no person shall be deprived of life,
liberty, or property without reasonable notice and an opportunity to be heard. See, e.g.,
Karpova v. Snow, 497 F.3d 262, 270 (2d Cir. 2007) (Cardamone, J.).
"The opportunity to be heard must be 'at a meaningful time and in a meaningful
manner.'" Karpova, 497 F.3d at 270 (quoting Mathews v. Eldridge, 424 U.S. 319, 333
(1976)). "However, the Due Process Clause does not necessarily require that a person be
given an opportunity to be heard orally in a testimonial setting; the opportunity for written
submissions may be sufficient." Id. In other words, "due process is flexible and calls for
such procedural protections as the particular situation dem ands." Morrissey v. Brewer, 408
U.S. 471, 481 (1972).
- 14 -

Measured against that standard, the telephonic arrangement employed by the DOL
did not violate Bedi's constitutional rights. Bedi was permitted to testify by telephone before
ALJ Harris rendered a decision on Ingvarsdottir's wage complaint. And although he might
not have been physically present for the hearing due to his incarceration, Bedi was
represented by legal counsel throughout the entire course of the administrative
proceedings. 5 U.S.C. § 555(b) ("A party is entitled to appear in person or by or with
counsel . . . in an agency proceeding.").
In reply, defendants seem to argue that ALJ Harris was obligated to continue
adjourning the matter seriatim until Bedi was eventually released from prison. Defs.' Reply,
Dkt. No. 67 at 9-10 (explaining that "the request to testify telephonically was made necessary
only because Defendants' numerous requests to adjourn the hearing . . . were repeatedly
denied"). But defendants have failed to offer any legal support for this argument. Indeed,
the Court takes judicial notice of the fact that Bedi was not even released to parole until
November 23, 2016, over three years after the administrative hearing in this case took
place. In sum, an independent review of the record confirms that there is no valid
constitutional concern to be found with the administrative proceedings.
Finally, defendants argue that the DOL award is unenforceable because it is not yet
final. Defs.' Mem. at 12. However, as explained in Bedi I, the ARB decision is a "final
agency action." 318 F. Supp. 3d at 566. The Government has demanded payment of that
award and defendants have refused. Pl.'s Facts ¶¶ 1-2. The question of when the
Government's FDCPA claim has accrued is separate from the question of how long a
defendant has to challenge an agency's action under the APA. Bedi I, 318 F. Supp. 3d at
566. The former matters; the latter does not.
- 15 -

B. Plaintiff's Motion
Bedi I and Bedi II concluded that the Government is entitled to use the FDCPA to
enforce the final administrative decision awarding back wages to Ingvarsdottir. The
foregoing discussion explains why defendants' motion for summary judgment must be
denied. The only remaining issue is whether the Government has demonstrated its
entitlement to judgment as a matter of law on the FDCPA claim.
Under the APA, "judicial review of an agency decision is typically limited to the
administrative record." Kappos v. Hyatt, 566 U.S. 431, 438 (2012). A reviewing court must
"hold unlawful and set aside agency action, findings, and conclusions" that are found to be
"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law." 5 U.S.C. § 706(2)(A).
Although legal conclusions are reviewed de novo, § 706, an agency's fact-finding is
reviewed under the substantial evidence standard, § 706(2)(E). If the court determines that
agency action violated the APA, "the proper course is for the action, findings, and
conclusions to be vacated, then remanded to the agency for further administrative
proceedings consistent with the court's opinion." Baiju v. U.S. Dep't of Labor, 2014 WL
349295, at *8 (E.D.N.Y. Jan. 31, 2014) (citation omitted).
Upon review of the administrative record in accordance with these principles, the
Government has established that it is entitled to summary judgment. As the Government
correctly details at length in its supporting memorandum, the ARB correctly affirmed ALJ
Harris's determination that defendants violated 8 U.S.C. § 1182(n)(1)(A) and 20
C.F.R. § 655.731 when they failed to pay Ingvarsdottir the "prevailing wage" listed in the

- 16 -

LCAs signed by defendants under penalty of perjury. Pl.'s Mem. at 18-24; see also AR at
488-511.
In making that determination, ALJ Harris relied on appropriate factors when resolving
issues of witness credibility and supported her other factual findings with substantial
evidence in the record. AR at 499-505. In addition, ALJ Harris thoroug hly analyzed the
relevant factors associated with Bedi's complete control over Datalink before concluding that
he should be held personally liable for the money judgment. Pl.'s Mem. at 25-27; see also
AR at 506-08. As the ARB noted, "[w]hile there are many complex facts in this case, the
relevant facts are simple." AR at 2. In sum, there is no error to be found in the ARB's order
affirming ALJ Harris's decision. AR at 1-8. Accordingly, the Government's motion for
summary judgment will be granted.
V. CONCLUSION
The writing has been on the wall since Bedi I, but defendants have managed to stave
off judgment for nearly three years simply by taking full advantage of the procedural
mechanisms appropriately available to civil defendants in federal court. But time has run out.
The Government has established its entitlement to a judgment on the merits. Bedi and
Datalink have not.
Therefore, it is
ORDERED that
1. The Government's motion for summary judgment is GRANTED;
2. Defendants' motion for summary judgment is DENIED;
3. Defendants' APA counterclaim is DISMISSED;

- 17 -

4. Defendants are jointly and severally liable for $340,987.43 in back wages, plus
pre- and post-judgment interest; and
5. The Government shall submit for consideration, on or before April 20, 2020, a
proposed judgment that adequately sets forth any applicable interest calculations, and the
date or dates from which any such calculations should run.
IT IS SO ORDERED.

Dated: April 8, 2020
Utica, New York.

- 18 -