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Gupta v. Perez

United States District Court, D. New Jersey

April 27, 2015

ARVIND GUPTA, Plaintiff,
v.
THOMAS PEREZ, Secretary of Labor, and WIPRO LTD., Defendant

Page 438

Arvind Gupta, Plaintiff, Pro se, Mumbai, MH.

OPINION

Page 439

Honorable Freda L. Wolfson, United States District Judge.

Pro se Plaintiff[1] Arvind Gupta (" Plaintiff," or " Gupta" ) seeks judicial review of the February 27, 2014 Final Decision and Order issued by the Administrative Review Board (" ARB" ) of the Department of Labor (" DOL" ) regarding Plaintiff's DOL complaint filed against Defendant Wipro Limited (" Wipro" ), and asserts associated other claims. Presently before the Court are cross-motions for summary judgment filed by (1) Plaintiff; (2) Defendant Thomas Perez, Secretary of Labor (" the Government" ); (3) and Wipro. Also before the Court is Plaintiff's motion for preliminary injunctive (equitable) relief against Wipro. Plaintiff has separately also filed a motion for leave to file supplemental claims and add a party.

For the reasons set forth below, Plaintiff's motion for summary judgment is DENIED and the Government and Wipro's motions for summary judgment are GRANTED. Plaintiff's motion for preliminary equitable (injunctive) relief is also DENIED. Finally, Plaintiff's motion for leave to file supplemental claims and add a party is DENIED WITHOUT PREJUDICE.

I. Background

a. Gupta's Work with Wipro

The following facts are undisputed unless otherwise indicated. Gupta, a resident of India, entered the United States in 2003 to work for Wipro[2] as an H-1B

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worker, pursuant to a labor condition application (" LCA" ) approved by DOL. Govt.'s Stmt. Of Undisputed Mat'l Facts (" Govt.'s Stmt. Of Facts" ) ¶ 1. Gupta commenced U.S. employment with Wipro on May 11, 2003, and first received wages from Wipro on May 30, 2003. Wipro's Response to Pl.'s Stmt. Of Facts ¶ ¶ 1, 2. Gupta's initial H-1B visa was approved through August 1, 2005. Wipro's Stmt. Of Facts ¶ 5.

In June 2005, Wipro petitioned United States Citizenship and Immigration Services (" USCIS" ) for an extension of Gupta's authorized period of employment in the United States. USCIS approved the petition on August 19, 2005, for the period between August 18, 2005 and June 10, 2008. Pl.'s Stmt. Of Facts ¶ ¶ 5, 6. Likewise, DOL certified the LCA supporting Wipro's H-1B petition for the period between June 14, 2005 and June 10, 2008. Id. ¶ 7; A.R. 494, 397.

In January 2006, Gupta joined a Wipro project in Atlanta, GA. Pl.'s Stmt. Of Facts. ¶ 10; Wipro's Stmt. Of Facts ¶ 11. The parties dispute whether Gupta resigned or whether Wipro relieved Gupta from his duties three months later. However, the parties agree that Wipro did not assign Plaintiff any " fee-producing or productive" work after March 17, 2006,[3] with the exception of wages Wipro paid to Gupta in March 2008 for the month of March. Pl.'s Response to Wipro's Stmt. Of Facts ¶ 13; Govt.'s Stmt. Of Facts ¶ 5; see also A.R. 395-96, 496-97.

At the end of April 2009, Gupta departed the United States and returned to India. Govt.'s Response to Pl.'s Stmt. Of Facts ¶ 25. In May 2009, Gupta attempted to start a recruiting business with offices in the United States and in India.[4] Govt.'s Stmt. Of Facts ¶ 6. However, the attempt was unsuccessful. See A.R. 81-86.

b. Gupta's DOL Complaint and ALJ Proceedings

In May 2009, Gupta filed a complaint with DOL's Wage and Hour Division (" WHD" ) in San Francisco, alleging that Wipro took unauthorized deductions from Gupta's wages and seeking relief under the H-1B nonimmigrant worker provisions of the INA. Pl.'s Stmt. Of Facts ¶ 28; Wipro's Response to Pl.'s Stmt. Of Facts ¶ 28. That same month, the WHD responded to Gupta's complaint and did not find reasonable cause to conduct an investigation, because Gupta filed the complaint more than 12 months after the last alleged unlawful deduction.[5] See A.R. 3. However, the WHD permitted Gupta to submit additional information to support his complaint.

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Pl.'s Response to Wipro's Stmt. Of Facts ¶ 18; A.R. 3.

In June 2009, Gupta filed a second complaint and submitted to the Administrator a single pay stub dated June 1, 2009, from a then-current Wipro employee, asserting that Wipro had also taken unlawful deductions from that employee's pay. Govt.'s Stmt. Of Facts ¶ 11; A.R. 470. Gupta claimed to have obtained the pay stub in his work as a business recruiter. Govt.'s Stmt. Of Facts ¶ 12. By letter dated January 7, 2010, WHD informed Gupta that reasonable cause existed to conduct an investigation of Wipro, and the Complaint was assigned a Case ID number 1570230. Pl.'s Stmt. Of Facts ¶ ¶ 31, 34; A.R. 1, 471. The WHD considered the complaint to be potentially viable because Gupta appeared to represent himself as a Business Competitor Complainant, which, if true, meant that Gupta had standing to bring such a complaint as an aggrieved competitor of Wipro. A.R. 3; see also 20 C.F.R. § 655.715. Later, however, in an April 22, 2010 email to the WHD investigator in charge of his case, Gupta stated that he had never started a recruiting business. Govt.'s Stmt. Of Facts ¶ 14.

As an apparent result of Gupta's April 2010 email, on May 7, 2010, the Administrator issued a Determination on Gupta's complaint and found no reasonable cause.[6] Pl.'s Stmt. Of Facts ¶ ¶ 36-37; see also A.R. 65-70. On July 12, 2010, Gupta sent an email to WHD, requesting that the principles of equitable tolling be applied to his May 2009 DOL complaint as an aggrieved worker, because Wipro allegedly misled him about his rights. See A.R. 124-25. On August 26, 2010, Gupta filed a " Motion for Order Setting Forth Discovery and Briefing Schedule and Motion for Hearing and prehearing Order" with the Office of Administrative Law (" OAL" ) and requested a hearing regarding his complaint in front of an Administrative Law Judge (" ALJ" ). See id. ¶ ¶ 39-41; A.R. 31.

On November 3, 2010, the ALJ issued an order directing the Administrator to show cause why, given the Administrator's initial decision to conduct an investigation based on Gupta's complaint, the Administrator was not required to issue a post-investigation determination letter under 20 C.F.R. § 655.806(b).[7] Pl.'s Stmt. Of Facts ¶ 17; Nov. 3, 2010 ALJ Order.

In her response to the show cause order, the Administrator requested that the ALJ dismiss the case for lack of subject matter jurisdiction. Id. ¶ 18. The Administrator attached Gupta's April 22, 2010 email, in which Gupta stated that he had never started a recruiting business, and further argued that based on this admission, Gupta could not file a complaint as an aggrieved " competitor" of Wipro under 20 C.F.R. § 655.715 and § 655.806(a).

In a December 23, 2010 order, the ALJ construed the Administrator's response to the show cause order as a motion for summary decision and invited the parties to supplement the record. Id. ¶ 20; A.R. 117. Both Gupta and the Administrator filed supplemental briefs with exhibits. A.R. 120-177. In his supplemental brief, Gupta argued that his complaints should

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be considered on the following bases: (1) on his own behalf as a " former H-1B worker" ; (2) on behalf of a current H-1B worker as a " competitor" or " future or potential competitor," see 20 C.F.R. § 655.715; (3) on behalf of a current H-1B worker as a " credible information source," see 20 C.F.R. § 655.807; [8] and (4) on behalf of a current H-1B worker (the same worker as alleged in (2) above) as a worker in a specialty occupation in non-productive status within 12 months of filing a complaint.[9] A.R. 128-29.

In a decision and order dated March 28, 2011, the ALJ dismissed Gupta's case. A.R. 232. At the outset, the ALJ noted that she had not notified Wipro of the proceedings in light of Gupta's earlier request that his identity remain confidential to the extent possible. Pl.'s Stmt. Of Facts ¶ 23; A.R. 219. The ALJ found that Gupta was entitled to request a hearing because, under 20 C.F.R. § 655.806(b), the Administrator should have issued a post-investigation determination letter after accepting Gupta's claim for investigation, which provides an interested party with the opportunity to request a hearing. Pl.'s Stmt. Of Facts ¶ 24; A.R. 219-20. However, given that Gupta had requested a hearing, the ALJ concluded that Gupta was not prejudiced by the Administrator's failure to issue a determination letter. Pl.'s Stmt. Of Facts ¶ 25; A.R. 228.

Reiterating that she had construed the Administrator's response to her November 3, 2010 order to show cause as a motion for summary decision, the ALJ reviewed the record and determined that the Administrator was entitled to summary decision. Pl.'s Stmt. Of Facts ¶ 26; A.R. 229. First, the ALJ concluded that Gupta's aggrieved worker complaint under 20 C.F.R. § 655.805(a)(2) was untimely, as Gupta failed to file it within twelve months of Wipro's most recent allegedly unlawful deduction from his pay and because Gupta was not entitled to equitable tolling. Govt.'s Stmt. Of Facts ¶ 27; A.R. 229. Second, the ALJ found that Gupta was not an aggrieved competitor under 20 C.F.R. § 655.715, because " the regulation does not define an aggrieved party as a 'potential or future competitor' but rather, quite plainly, as a competitor." A.R. 231. Finally, the ALJ decided that she did not have the authority to review Gupta's assertion that his complaint should be considered under 20 C.F.R. 655.807 as a non-aggrieved " credible information source" complaint, because " the regulation specifically states that no hearing is available from a decision by an Administrator declining to refer [such] allegations to the Secretary [of Labor]. The Administrator's discretion in this area is plenary and nonreviewable." [10] A.R. 232.

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Gupta appealed the ALJ's dismissal order to the DOL's Administrative Review Board (" ARB" ). A.R. 539. On May 9, 2011, Gupta moved before the ARB to amend the dates of his employment in his complaint.[11] A.R. 484-493. On August 11, 2011, the ARB remanded the case, holding that due process required the ALJ to give Wipro an opportunity to participate in the proceedings, notwithstanding Gupta's request that the matter remain confidential to the extent possible. Pl.'s Stmt. Of Facts ¶ 32; A.R. 544. The remand order instructed the ALJ to " conduct the proceedings on remand in the manner she believes appropriate . . . ." Govt.'s Stmt. Of Facts ¶ 33; A.R. 545.

On August 30, 2011, the ALJ acknowledged receipt of the ARB's remand order and (1) directed the Administrator and Gupta to provide to Wipro their submissions filed with the DOL and (2) authorized Wipro to respond to Gupta's complaint. A.R. 289. On or around November 4, 2011, Wipro submitted a letter response in the ALJ proceeding that stated that Wipro " affirms its agreement" with the ALJ's March 28, 2011 Decision and Order, that the DOL had " satisfactorily resolved [Gupta's] grievances against [Wipro] following a detailed investigation, and that Wipro " now considers this matter closed." Pl.'s Stmt. Of Facts ¶ 45; Wipro's Letter Response dated Nov. 4, 2011. Gupta responded and submitted two post-remand exhibits, including (1) a pay stub and W-2 form showing Gupta's earnings in March 2008; (2) a copy of Gupta's labor application from June 14, 2005 through June 10, 2008; and (3) a declaration from Gupta. See A.R. 548.

On January 25, 2012, the ALJ issued a decision and order on remand. A.R. 553. The ALJ declined to address any newly raised issues and concluded that the scope of her decision on remand was limited to the issue originally before her. A.R. 550. The ALJ thus denied Gupta's motions requesting the amendment of the dates of his employment and issuance of an order to show cause why summary decision for Gupta should not be granted based on Wipro's apparent failure to establish Gupta's bona fide termination.[12] A.R. 552. The ALJ also admitted the post-remand exhibits filed by Gupta. A.R. 551. Reviewing the record, the ALJ concluded that the evidence still reflected that Gupta's aggrieved worker complaint was untimely, given that March 2008, the date of Gupta's most recent paycheck from Wipro, preceded Gupta's May 2009 complaint by more than twelve months. A.R. 553. The ALJ also found that the additional evidence did not support the merits of Gupta's claim; in that connection, the ALJ noted that the only deductions reflected in Gupta's March 2008 pay records were state and federal taxes, which the H-1B regulations plainly permit. A.R. 553; see also 20 C.F.R. 655.731(c)(9)(i).

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On January 30, 2012, Gupta filed a Petition for Review with the ARB. A.R. 567. On February 29, 2012, the ARB gave notice of its intention to review the case. A.R. 586. By Order dated May 22, 2012, the ARB identified the issue under consideration. A.R. 596. On February 27, 2014, the ARB issued a Final Decision and Order affirming the ALJ's dismissal of Gupta's case. A.R. 737.

In the ARB's Final Decision and Order, the ARB found that the undisputed facts established that " Gupta's May and June 2009 complaints advanced the same, single type of violation: illegal deductions connected to the base salary earned in Gupta's home country." A.R. 735. First, regarding Gupta's claim of H-1B violations pertaining to his own wages, the ARB agreed with the ALJ that Gupta's claims as an aggrieved worker were time-barred. A.R. 736. In particular, the ARB found that the last allegedly illegal deductions made from his wages occurred on or before March 2006, which made his 2009 complaints over three years late. A.R. 736. The ARB also found that Gupta failed to present persuasive reasons to invoke equitable tolling. A.R. 736. Second, the ARB affirmed the ALJ's dismissal of Gupta's aggrieved competitor complaint as to the allegedly illegal deductions made from the wages of other H-1B workers at Wipro. A.R. 737. In that connection, the ARB found that the undisputed evidence, particularly Gupta's own admissions, demonstrated that Gupta was not Wipro's competitor and, thus, Gupta was not adversely affected by the alleged violation. A.R. 737. Finally, the ARB held that the discretion to investigate credible source complaints lies with the WHD Administrator and other Labor Department officials, and that the regulations prohibit parties from appealing the Labor Department's refusal to exercise such discretion. A.R. 737.

On March 10, 2014, Plaintiff filed the present lawsuit in the Northern District of California, seeking judicial review of the ARB's final decision. On March 25, 2014, Plaintiff filed a " Complaint for Judicial Review of Final Agency Decision, and Declaratory and Injunctive Relief, INA Violations By Wipro," which the Court construes to be an Amended Complaint that not only (1) seeks judicial review of the ARB's final decision, but also asserts: (2) a claim of unauthorized deductions against Wipro, and (3) claims for declaratory relief and a preliminary injunction.[13] On June 24, 2014, the case was transferred to this Court. Thereafter, Wipro, the Government, and Gupta all moved for summary judgment on all of Plaintiff's claims.

I. Standard of Review

Judicial review of an agency's final determination is governed by the Administrative Procedure Act (the " APA" ), 5 U.S.C. § 701 et seq., rather than the typical summary judgment standard. Pursuant to Section 706(2), a reviewing court must

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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;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

5 U.S.C. § 706(2). Thus, under the APA, the function of the reviewing court is limited. A reviewing court may not substitute its judgment for that of the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-15, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Rather, " the court's inquiry is limited to determining whether the agency 'considered the relevant factors and articulated a rational connection between the facts found and the choice made,' Baltimore Gas & Elec. Co. v. Natural Res. Defense Counsel, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983), and 'whether there has been a clear error of judgment.' Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)." Sierra Club v. United States Army Corps of Engineers, No. 05-CV1742, 2005 WL 2090028 at *8 (Aug. 29, 2005). Moreover, " substantial deference is given to an agency's interpretation of statutes it administers, and particularly to its own regulations, so long as the interpretation is a permissible one." Id. (citations omitted). However, " [a]n agency decision based on an issue of law that does not " implicate[ ] agency expertise in a meaningful way" . . . is subject to de novo review. Cyberworld Enter. Technologies, Inc. v. Napolitano, 602 F.3d 189, 196 (3d Cir. 2010) (citing Sandoval v. Reno, 166 F.3d 225, 239-40 (3d Cir. 1999)).

As a threshold matter, the Court's direct review is limited to the ARB's Final Decision and Order. 5 U.S.C.A. § 704 (" Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action." ). Further, " an agency's decision not to prosecute or enforce . . . is a decision generally committed to an agency's absolute discretion." Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).

II. Analysis

a. Statutory and Regulatory ...


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