In the Matter of:
NALINABAI P. CHELLADURAI, ARB
CASE NO. 03-072
COMPLAINANT, ALJ
CASE NO. 03-LCA-004
v. DATE:
July 24, 2006
INFINITE SOLUTIONS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Nalinabai P. Chelladurai, pro se, Tamil Nadu, India
ORDER DENYING RECONSIDERATION
This
case was originally before the Administrative Review Board (ARB or Board) based
on a complaint Nalinabai Chelladurai (Chelladurai) filed alleging that her employer,
Infinite Solutions, Inc. (ISI), violated the provisions of the Immigration and
Nationality Act of 1990, as amended (INA), 8 U.S.C.A. §§ 1101-1537 (West 1999
& Supp. 2004) and the regulations at 20 C.F.R. Part 655, Subparts H and I
(2005). After reviewing the record, we determined that ISI had violated the
INA by not paying Chelladurai wages starting from January 3, 2001, the date
upon which she "entered into employment" with ISI. In a Final
Decision and Order dated April 26, 2006, the Board modified the Administrative
Law Judge's decision and ordered the payment of back wages to Chelladurai from
January 3, 2001, to April 16, 2001. The Board ordered ISI to pay these back
wages at the prevailing wage rate of $54,558.40 per annum as set forth in the Labor
Condition Application (LCA). The Board further denied all pending motions.
[Page 2]
On June 13, 2006, Chelladurai filed a Motion for
Rehearing with the Board. Chelladurai both asserts error in the Board's
decision and makes new points that are immaterial to this case. Asserting
error on the part of the Board, Chelladurai argues that the Board should have
awarded her back wages not at the $54,558.40 prevailing annual wage rate set
forth in the LCA but at the $65,000.00 annual wage rate referred to in ISI's offer
of employment. See Respondent's Exhibit L. Chelladurai states that
because the Board failed to use the appropriate wage rate, she will seek
recourse in California State Court which, she posits, will rule in her favor.
Motion for Rehearing at 3. Chelladurai summarily argues that the Board should
have taken the opportunity to set case precedent in its decision and did not issue
an impartial decision but favored ISI's position. Chelladurai continues to
assert bad faith and bad acts on the part of ISI and its employees, including
software theft, perjury, and evidence tampering. Chelladurai further asserts
that the Board erred by considering ISI's October 10, 2003 Motion to Re-Open
Evidentiary Hearing to Take Additional Evidence, because she does not remember
receiving a copy of the motion. Motion for Rehearing at 7. Chelladurai also states
that ISI did not provide her with a copy of its January 26, 2003 Closing
Argument filed with the Office of Administrative Law Judges. Chelladurai asks
the Board to provide her with copies of these two pleadings. Id. In
further support of her Motion, Chelladurai makes new points that do not pertain
to this case. Specifically, Chelladurai alleges that the United States
Department of Labor (DOL) has influenced several California state entities,
including the Sheriff's Office for Sacramento, California, in their dealings
with her. Chelladurai also asserts that the United States Government has
violated her human rights by denying visas to her and her family. Motion for
Rehearing at 3.
We
construe complaints and papers filed by pro se complainants "liberally in
deference to their lack of training in the law" and with a degree of
adjudicative latitude. Young v. Schlumberger Oil Field Serv., ARB No.
00-075, ALJ No. 2000-STA-28, slip op. at 8-10 (ARB Feb. 28, 2003), citing Hughes
v. Rowe, 449 U.S. 5 (1980). At the same time, we are charged with a duty
to remain impartial; we must "refrain from becoming an advocate for the
pro se litigant." Id.
In
this case, we construe Chelladurai's Motion for Rehearing as a request for
reconsideration. The ARB is authorized to reconsider earlier decisions. See
Knox v. United States Dep't
of Interior, ARB No. 03-040,
ALJ No. 2001-CAA-3 (Oct. 24, 2005). The
Board has adopted principles federal courts employ in deciding requests for
reconsideration. We will reconsider our decisions under similar limited
circumstances, which include: (i) material differences in fact or law from that
presented to a court of which the moving party could not have known through
reasonable diligence, (ii) new material facts that occurred after the court's
decision, (iii) a change in the law after the court's decision, and (iv)
failure to consider material facts presented to the court before its decision.
See, e.g., Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.
1995); Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d
1245, 1255 (2d Cir. 1992); Weinstock v. Wilk, 2004 WL 367618, at *1 (D.
Conn. Feb. 25, 2004); Motorola, Inc. v. J.B. Rodgers Mech. Contractors,
Inc., 215 F.R.D. 581, 582-586 (D. Ariz. 2003).
[Page 3]
Chelladurai's argument that the Board should
have awarded back wages at a rate other than at the $54,558.40 prevailing
annual wage rate set forth in the LCA, reiterates the argument she made on
appeal. Similarly, Chelladurai's assertion of software theft, perjury, and
evidence tampering by ISI and its employees, expands on assertions of bad faith
and bad acts that she made on appeal. The Board has ruled on these issues and,
therefore, we need not address them again on reconsideration. United States v. Smith, 781 F.2d 184 (10th Cir. 1986).
Chelladurai's arguments that the Board (1)
should have taken the opportunity to set case precedent, and (2) did not issue
an impartial decision, neither refer to a difference in fact or law from that
presented to the Board, nor refer to a new material change in fact or law, nor point
to any failure by the Board to consider material facts. Chelladurai's assertions
that (1) the Board erred by considering ISI's October 10, 2003 Motion to
Re-Open Evidentiary Hearing to Take Additional Evidence because she does not remember
receiving it, and (2) ISI did not provide her with a copy of its January 26,
2003 Closing Argument, are refuted by the record where both documents reflect
service to Chelladurai. Further, Chelladurai's allegations that DOL influenced
California state entities against her and that the United States Government
violated her human rights, raise new points that are immaterial to this case. Because
Chelladurai's Motion for Rehearing does not refer to a difference in fact or
law from that presented to the Board, or refer to a new, material change in
fact or law, or point to any failure by the Board to consider material facts,
it does not satisfy any of the above-mentioned circumstances under which we
will reconsider our rulings. Therefore, Chelladurai's Motion for Rehearing is DENIED.
SO ORDERED.
M.
CYNTHIA DOUGLASS
Chief
Administrative Appeals Judge
WAYNE
C. BEYER
Administrative
Appeals Judge
