BLD-239 and BLD-240                                            NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                 Nos. 15-3194 & 16-1305
                                      ___________

                                    ARVIND GUPTA,
                                              Appellant

                                             v.

            SECRETARY UNITED STATES DEPARTMENT OF LABOR;
                            WIPRO LIMITED
                  ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Civil No. 3-14-cv-04054)
                      District Judge: Honorable Freda L. Wolfson
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     April 28, 2016

              Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges

                              (Opinion filed: May 5, 2016)
                                      _________

                                        OPINION*
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Arvind Gupta appeals from orders of the United States District Court for the

District of New Jersey granting the defendants’ motions for summary judgment, denying

his motion for reconsideration, and denying his motion for costs and expenses. Because

these appeals do not present a substantial question, we will summarily affirm. See 3d

Cir. LAR 27.4; I.O.P. 10.6.

       The parties are familiar with the facts, which are thoroughly set forth in the

District Court’s Opinion, so we will only briefly revisit them here. In 2003, Gupta, a

citizen of India, entered the United States to work for Wipro, Ltd., as an H-1B worker,

pursuant to a labor condition application that had been approved by the Department of

Labor. See Cyberworld Enter. Techs., Inc. v. Napolitano, 602 F.3d 189, 192 (3d Cir.

2010) (noting that “to obtain H-1B visas for their employees, employers must file a ‘labor

condition application’ (‘LCA’) with the Department of Labor under procedures set forth

by 8 U.S.C. § 1182(n)”). The H-1B program is designed to allow professionals from

other countries who are employed in “specialty occupations” to work in the United States

on a temporary basis. Id. Gupta worked for Wipro until March 17, 2006, and then again

briefly in March 2008. Thereafter, Gupta attempted to start a recruiting business with

offices in the United States and India, but he “abandoned the business idea later.”

       In May and June 2009, Gupta filed complaints with the Department of Labor’s

Wage and Hour Division, alleging that Wipro took unauthorized deductions from his

wages and from the wages of other workers. The Administrator of the Wage and Hour

Division found no reasonable cause to investigate the complaint. Gupta requested a
                                             2
hearing before an Administrative Law Judge (ALJ), who ultimately found “that summary

decision in favor of the Administrator is appropriate” and dismissed Gupta’s complaint.

Gupta next filed a petition for review with the Administrative Review Board (ARB),

which affirmed the ALJ’s dismissal of his complaint. In particular, the ARB concluded

that Gupta’s claims of H-1B violations pertaining to his wages were time-barred, that he

was not eligible to file a complaint on behalf of other Wipro employees as an aggrieved

competitor because he did not start his own business, and that he could not appeal from

the Administrator’s discretionary rejection of his request to investigate “credible source”

complaints.

       In March 2014, Gupta filed in the District Court a pro se complaint under the

Administrative Procedure Act (APA) against Wipro and the Secretary of Labor.1 See 5

U.S.C. § 702. Wipro and the Secretary of Labor filed motions for summary judgment,

which the District Court granted. Gupta filed a timely motion for reconsideration, which

the District Court denied. Gupta appealed, and the matter was docketed here at C.A. No.

15-3194. Gupta also appealed from a later order denying his motion for costs and

expenses; that matter was docketed here at C.A. No. 16-1305. Gupta and Wipro have

filed cross-motions for summary action in both appeals.


1
 Gupta initially filed the complaint in the United States District Court for the Northern
District of California, which, upon Wipro’s motion (which was joined by the Secretary of
Labor), transferred the matter to the District of New Jersey. To the extent that Gupta
seeks review of that transfer order, we lack jurisdiction. See Posnanski v. Gibney, 421
F.3d 977, 980 (9th Cir. 2005) (holding that “a transfer order issued by a district court in
another circuit” is “reviewable only in the circuit of the transferor district court.”).
                                               3
       The District Court had jurisdiction under 5 U.S.C. § 702, and we have jurisdiction

under 28 U.S.C. § 1291. In reviewing final administrative decisions under the APA, “we

review the district court’s summary judgment decision de novo, while ‘applying the

appropriate standard of review to the agency’s decision.’” Concerned Citizens Alliance,

Inc. v. Slater, 176 F.3d 686, 693 (3d Cir. 1999) (quoting Sierra Club v. Slater, 120 F.3d

623, 632 (6th Cir. 1997)). Under the APA, we review agency actions to determine

whether they were “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law[.]” 5 U.S.C. § 706(2)(A). “The scope of review under the ‘arbitrary

and capricious’ standard is narrow and a court is not to substitute its judgment for that of

the agency.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983). We must determine only “whether the decision was based

on a consideration of the relevant factors and whether there has been a clear error of

judgment.” Id. (quotations and citations omitted).

       Pursuant to 20 C.F.R. § 655.806(a), “[a]ny aggrieved party” under the H-1B visa

program may file a complaint with the Wage and Hour Division pertaining to the

enforcement of LCAs. An aggrieved party includes, inter alia, a “worker” or

“competitor” whose “operations or interests are adversely affected by the employer’s

alleged non-compliance with the [LCA].” 20 C.F.R. § 655.715. The Administrator of

the Wage and Hour Division determines whether there is “reasonable cause to believe

that a violation . . . has been committed, and therefore that an investigation is warranted.”

20 C.F.R. § 655.806(a)(2). Notably, “[n]o investigation or hearing shall be conducted on
                                              4
a complaint . . . unless the complaint was filed not later than 12 months after the date of

the failure or misrepresentation.” 8 U.S.C. § 1182(n)(2)(A); see 20 C.F.R.

§ 655.806(a)(5).

       Gupta left his employment at Wipro in March 2006, and briefly worked for the

company again in March 2008. Therefore, the ARB properly concluded that Gupta’s

complaints, filed in May and June 2009, were untimely to the extent that he sought relief

on behalf of himself as an aggrieved worker.2 Gupta asserted that equitable tolling or

equitable estoppel should excuse his untimely complaints because Wipro made him “sign

a letter agreement, which included the unauthorized deduction as a condition of

employment,” “did not provide earning statements . . . for several months,” and failed to

inform him that the terms of the LCA would control the conditions of his employment.

We conclude that, even if the 12-month limitation period is subject to tolling, the ARB’s

affirmance of the ALJ’s rejection of Gupta’s argument was not arbitrary or capricious

because Gupta failed to adequately explain how Wipro’s conduct induced him not to file

his complaints within the limitations period. See Sch. Dist. of Allentown v. Marshall,

657 F.2d 16, 19-20 (3d Cir. 1981) (noting that equitable tolling is appropriate when, inter

alia, “the defendant has actively misled the plaintiff respecting the cause of action . . . .”


2
 Furthermore, the ARB properly concluded that Gupta could not proceed as an aggrieved
competitor. In the course of attempting to start a recruiting business, Gupta acquired a
June 2009 pay statement from a then-current Wipro employee. According to Gupta, that
pay statement provided a basis upon which to file a timely complaint as Wipro’s
competitor. But because, by his own admission, Gupta never started a business that
competed with Wipro, the ARB’s conclusion that he did not qualify as an aggrieved
                                             5
(quoting Smith v. Am. President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978)). We also

agree that Wipro raised a timeliness defense at the first reasonably possible moment after

being notified of the proceedings, and that Gupta had an adequate opportunity to

demonstrate why the timeliness defense should not succeed.3 Cf. Robinson v. Johnson,

313 F.3d 128, 135-36 (3d Cir. 2002).

       Gupta’s remaining claims lack merit, substantially for the reasons provided in the

District Court’s thorough opinion. In an apparent effort to avoid application of 12-month

limitations period, Gupta sought to bypass the administrative review process completely

by raising his claims directly in the District Court. We agree with the District Court,

however, that no private right of action exists for violations of 8 U.S.C. § 1182(n). See,

e.g., Venkatraman v. REI Sys., Inc., 417 F.3d 418, 422-24 (4th Cir. 2005) (concluding

that there is no implied cause of action under § 1182(n)). Gupta has provided no

authority to the contrary. In addition, although Gupta alleged that the ARB committed

numerous procedural violations during the adjudication of his complaints, he failed to

establish that he was deprived of due process. See Ala. Power Co. v. FCC, 311 F.3d


competitor was not arbitrary or capricious.
3
  In November 2010, the ALJ issued an order directing the Administrator to show cause
why s/he was not required to conduct an investigation based on Gupta’s complaints. The
Administrator filed a response in December 2010, alleging that Gupta “does not qualify
as an aggrieved worker because any violations that may have been committed against
him in that capacity happened more than twelve months before the submission of his
complaint to the Wage and Hour” Division. Administrative Record (A.R.), 68 (Dist. Ct.
Doc. No. 70). Wipro first received notice of the proceedings sometime after August 30,
2011, and filed a response on November 4, 2011, stating that it agreed with the ALJ’s
resolution of the matter. A.R. 289-93, 374.
                                            6
1357, 1367 (11th Cir. 2002) (“We review constitutional challenges to agency orders de

novo.”). In particular, the alleged violations were minor and would not have denied

Gupta sufficient notice or a meaningful opportunity to respond. There is also no merit to

Gupta’s assertion that the ARB improperly construed his complaints as encompassing

only a claim for unauthorized deductions, instead of also including an allegation that

Wipro did not pay required wages. It is clear, however, that Gupta’s complaints

contained no challenge to wages paid by Wipro, and Gupta did not move to amend his

complaints to include such a claim. To the extent that Gupta sought review of the ARB’s

decision to affirm the ALJ’s denial of his request to hear his complaint as a “credible

source” under 20 C.F.R. § 655.807, we agree that the decision is unreviewable. See 20

C.F.R. § 655.807(h)(2) (providing that parties may not appeal from the Labor

Department’s refusal to exercise discretion to investigate violations based on credible

information received from reliable sources).

       We further agree that Gupta’s motion for reconsideration did not involve an

intervening change in controlling law, newly discovered evidence, or allegations of clear

errors of law or fact. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir.

1999). Finally, contrary to Gupta’s assertion, neither 8 U.S.C. § 1182(n)(2)(C)(i) nor

Chambers v. NASCO, Inc., 501 U.S. 32, 35 (1991), provide for the award of costs and

expenses in this circumstances. Section 1182(n)(2)(C)(i) permits the Secretary of Labor

to impose appropriate administrative remedies for violations of certain labor condition

application requirements. Chambers involved “scope of the inherent power of a federal
                                               7
court to sanction a litigant for bad-faith conduct.” 501 U.S. at 35. Because Gupta was

not a prevailing party and has not alleged any bad-faith conduct, the District Court

properly denied his motion for costs and expenses.

       Accordingly, because there is no substantial question presented by these appeals,

we grant Wipro’s motions to summarily affirm the judgment of the District Court.

Gupta’s motions for summary action are denied, as is his motion to strike Wipro’s motion

for summary action in C.A. No. 15-3194.




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