Gupta v. Headstrong, Inc.
| Decision Date | 30 August 2013 |
| Docket Number | No. 12 Civ. 6652 (RA),12 Civ. 6652 (RA) |
| Parties | ARVIND GUPTA, Plaintiff, v. HEADSTRONG, INC., and HILDA L. SOUS, Secretary, United States Department of Labor, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Arvind Gupta, proceeding pro se, brings this action against Defendant Headstrong, Inc. pursuant to 8 U.S.C. § 1182(n) of the Immigration and Nationality Act ("INA"). Gupta seeks "judicial review of final agency action by Defendant Secretary, U.S. Department of Labor" and "Declaratory Judgment regarding the timeliness of his complaint." (Compl. ¶ 1.) Headstrong moves to dismiss Gupta's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, Headstrong's motion is granted.
In March 2006, Gupta, a citizen of India, entered into an employment agreement with Headstrong, a global provider of comprehensive consulting and IT services. (Compl. ¶¶ 6-7, 10.) Thereafter, the Department of Labor ("DOL") certified a Labor Condition Application that permitted Headstrong to employ Gupta from March 16, 2006 to March 16, 2009. (Id. ¶ 10.) On April 24, 2006, United States Citizenship and Immigration Services ("USCIS") approvedHeadstrong's petition for nonimmigrant worker status ("H-1B petition") for April 24, 2006 to November 8, 2007. (Id.)
Gupta received a letter from Headstrong on November 16, 2006 stating that "we have elected to terminate your employment due to lack of work . . . you are effectively terminated as an employee of Headstrong as of November 27, 2006." (Id. ¶ 12.) Subsequently, however, Gupta alleges that he was told by management at Headstrong that "they [would] not inform USCIS to cancel his H-1B petition, [they would] look for alternative positions and when [a] suitable opportunity [would] arise; they [would] offer the same to the Plaintiff." (Id. ¶ 13.) Gupta later learned that Headstrong notified USCIS that his H1-B petition could be cancelled on January 15, 2007. (Id. ¶ 15.)
On January 18, 2008, Gupta contacted the DOL by telephone, and indicated that Headstrong had not paid him wages through November 8, 2007 as required by the INA and that he would send a written complaint shortly. (Id.) The written complaint was filed with the DOL in May 2008. (Id. Ex. 5.) Gupta also requested payment of the wages at issue from Headstrong directly. (Id. ¶ 16.)
Gupta was informed by the Wage and Hour Division ("WHD") of the DOL on June 8, 2010 that his complaint was untimely. (Id. ¶ 19.) He requested a hearing before an administrative law judge, which was denied by order dated October 12, 2010. (Id. ¶¶ 20-23.) Gupta then brought a second claim, alleging misrepresentation of a material fact in his Labor Condition Application previously submitted by Headstrong. (Id. ¶ 25.) Similarly, this claim was found to be untimely and Gupta's request for a hearing was denied. (Id. ¶¶ 25-26.) The Administrative Review Board accepted Gupta's petition for review for both cases through a consolidated appeal, but ultimately agreed with the Administrative Law Judge that aninvestigation of Gupta's complaint was not warranted because he had not filed a timely complaint. (Id. ¶ 27.)
Gupta commenced this action on August 30, 2012 against Headstrong and the Department of Labor seeking "judicial review of final agency action by Defendant Secretary, U.S. Department of Labor," a declaratory judgment regarding the timeliness of his complaint and "any and all relief and damages as provided by INA and its implementing regulations." (Id. ¶ 1.)
On December 6, 2012, Gupta entered into a Stipulation and Order of Remand and Dismissal with the DOL. (Dkt. No. 23.) The Stipulation provided that the "DOL has determined that its administrative record is incomplete for purposes of judicial review, and that it should give further consideration to whether it erred in concluding that Gupta's complaints were untimely." (Id.) Accordingly, the parties resolved that "[f]he WHD's determination that Gupta's complaints against Headstrong were untimely is vacated and the matter is remanded to the WHD for a new decision on Gupta's complaints and request for investigation." (Id.) The stipulation further provided that it "shall have no effect on Gupta's claims in this action against Headstrong, Inc." (Id.) Headstrong was not a party to the stipulation. (Id.)
Before the Court is Headstrong's motion to dismiss. Headstrong claims that because Gupta's claim is still pending in the WHD, the Court lacks subject matter jurisdiction over the action and the Complaint fails to state a claim upon which relief can be granted.
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "[J]urisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the partyasserting it." Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). "In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) a district court may consider evidence outside the pleadings." Id.
To survive a motion to dismiss brought pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Where a plaintiff is proceeding pro se, the Court reads the plaintiffs pleadings liberally and interprets them "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam)(internal quotation marks omitted). Nonetheless, a pleading that offers "labels and conclusions" or only provides "naked assertion[s]" devoid of "further factual enhancement" is insufficient. Twombly, 550 U.S. at 555, 557.
Headstrong alleges that because Gupta has not exhausted his administrative remedies, the complaint is premature and must be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). "Under the doctrine of exhaustion of administrative remedies, 'a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself.'" Howell v. I.N.S., 72 F.3d 288, 291 (2d Cir. 1995) (quoting Guitard v. United States Secretary of Navy, 967 F.2d 737, 740 (2d Cir. 1992)). "If a party fails to exhaust administrative remedies, then the court may dismiss the actionbecause subject matter jurisdiction does not exist." Howell, 72 F.3d at 291. "[T]he defense of exhaustion of administrative remedies generally implicates jurisdiction." Shah v. Wilco Sys., Inc., 126 F. Supp. 2d 641, 647 (S.D.N.Y. 2000).
The INA contains a comprehensive administrative scheme to redress alleged violations of Section 1182(n), which sets forth the requirements of the H-1B visa program.2 See id. "To qualify for an H-1B visa, an alien must have both 'highly specialized knowledge' of a particular occupation and a promise of employment from an American employer for a paid position." United States v. Ramirez, 420 F.3d 134, 137 (2d Cir. 2005). Before an H-1B visa is issued, the employer must file a Labor Condition Application and other supporting documents with the DOL and obtain the agency's approval. See 8 U.S.C. § 1182(n)(1). As part of this application, the employer must attest to several things, including that it will pay the H-1B employee no less than its other similarly qualified employees and that its current employees are not on strike. See § 1182(n)(1).
Section 1182(n) entrusts the investigation of complaints into an employer's alleged failure to satisfy the requirements in the Labor Condition Application to the Secretary of Labor and the Attorney General. See § 1182(n)(2)(A)-(n)(5)(A). Pursuant to Section 1182(n)(2), the aggrieved party must file a complaint with the Wage and Hour Division of the DOL, which then makes a determination regarding the validity of the complaint. See § 1182(n)(2); 20 C.F.R. §§ 665.805, 655.815. If the party is dissatisfied with this determination, he may request a hearing before an administrative law judge. Thereafter, any party may petition for review by the DOL's Administrative Review Board, whose decision in turn may be appealed to the appropriate Untied States District Court. 20 C.F.R. §§ 655.840, 655.845, 655.850.
Although Gupta previously took part in the administrative process, his claims have been reopened before the WHD since the filing of the complaint. Gupta's stipulation with the DOL provides that his request for an investigation is to be reconsidered by the WHD.3 Accordingly, Gupta's claims are still being considered pursuant to the administrative scheme set forth in Section 1182(n) and he will have the opportunity to present his claims against Headstrong in that forum. Courts in this district have dismissed properly filed complaints after intervening circumstances provided the plaintiff a renewed opportunity to pursue his claims through administrative proceedings. See Howell, 72 F.3d at 293 ( ); Gandria v. Gantner, No. 05 Civ. 6621 (NRB), 2008 WL 650369, at *3 (S.D.N.Y. Mar. 6, 2008) (...
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