Chelladurai v. Core Consultants Inc., ARB No. 02-110, ALJ No. 2002-LCA-10 (ARB Aug. 26, 2003)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO. 02-110
ALJ CASE NO. 02-LCA-0010
DATE: August 26, 2003

In the Matter of:

NALINABAI P. CHELLADURAI,
    PETITIONER/
    PROSECUTING PARTY,

    v.

CORE CONSULTANTS INC.,
    RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearance:

For the Petitioner/Prosecuting party:
    Nalinabai P. Chelladurai, pro se, Sacramento, California

   On July 23, 2002, a Department of Labor Administrative Law Judge (ALJ) issued an Order of Dismissal (O.D.) pursuant to 8 U.S.C.A. § 1182(n)(2) (West 1999), the enforcement provision of the H-1B visa program of the Immigration and Nationality Act (INA), as amended, 8 U.S.C.A. § 1101(a)(15)(H)(i)(B), and the implementing regulations at 20 C.F.R. Part 655, Subparts H and I (2002). The Petitioner/Prosecuting Party Nalinabai P. Chelladurai timely filed a petition for review with the Administrative Revew Board pursuant to 20 C.F.R. § 655.845(a). For the reasons set forth herein, we affirm the ALJ's decision to dismiss the Petitioner's case as abandoned pursuant to 29 C.F.R. § 18.39(b), based on the Petitioner's failure to appear before the ALJ as scheduled.

   The Immigration and Nationality Act defines various classes of aliens who may enter the United States for prescribed periods of time and for prescribed purposes under various types of visas. 8 U.S.C.A. § 1101(a)(15). One class of aliens, known as "H-1B" workers, is allowed entry into the United States on a temporary basis to work in "specialty occupations." 8 U.S.C.A. § 1101(a)(15)(H)(i)(B); 20 C.F.R. § 655.700.

   "Specialty occupation" means an occupation that requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bacherlor's degree or higher in the particular speciality. 8 U.S.C.A. § 1184(i); 20 C.F.R. § 655.715. The Immigration and Naturalization Service identifies and defines the occupations covered by the H-1B category and determines an alien's qualifications for such occupations. An employer who wants to employ a non-immigrant alien under the H-1B program must file a labor condition application (LCA) that meets the criteria provided at 20 C.F.R. § 655.700. Such employer is required to compensate the LCA employee at a specified wage rate, and to provide them with certain fringe benefits and working conditions. 20 C.F.R. §§ 655.731 - 655.733. The aforesaid requirements are among those enforced by the DOL Wage and Hour Division under the INA. 20 C.F.R. § 655.705(a); 59 Fed. Reg. 65,646 (Dec. 20, 1994).

   This case arose from the Wage and Hour Division's investigation of a complaint that Respondent Core Consultants Inc. (Core) had failed to comply with LCA wage requirements in respect to Chelladurai and another H-1B employee. The Administrator of the Wage and Hour Division determined that Core had failed to pay the two employees as required and that Core owed Chelladurai $288.46. O.D. at 1 n.1; see Administrator's determination letter to Basil Xavier, Core Consultants Inc., dated Jan. 17, 2002.

   Chelladurai disagreed with the Administrator's determination, asserting that Core owed her $4,615.39 rather than $288.46. Pursuant to 20 C.F.R. § 655.820, Chelladurai requested a hearing to challenge the Administrator's January 17, 2002 determination. O.D. at 1; see Chelladurai's Pre-Hearing Statement of Position filed Apr. 30, 2002 at unnumbered p.4.

   On March 13, 2002, the ALJ issued a Notice of Final Hearing, advising the parties to appear at a calendar call to be conducted at 2:30 pm on Monday, May 6, 2002, when a specific hearing time during the following week would be set. Notice of Final Hearing dated Mar. 13, 2002. The notice also directed the parties to complete discovery, to submit pre-hearing statements, and to exchange copies of documents each would offer into evidence at hearing by specified dates in the weeks prior to May 6. Id. at 1-2. Finally, the notice advised the parties that a failure to fully comply with all aspects of the notice could result in the imposition of sanctions pursuant to 29 C.F.R. §§ 18.6(d)(2), 18.29. Id. at 2.

   Chelladurai, who was unrepresented by counsel before the ALJ, as she is before the Board, complied with the pre-hearing submissions and document exchanges that were ordered by the March 13 notice, but she did not appear before the ALJ on May 6, 2002. She also did not contact the ALJ prior to May 6 to seek a postponement. She also did not contact the ALJ after May 6 to explain her failure to appear, until after she received the Order to Show Cause that the ALJ issued on May 14. O.D. at 2; see Chelladurai letter to ALJ dated May 22, 2002; Complainant's Reply to the Show Cause Notice Order [sic] filed June 4, 2002.

   The ALJ's May 14 show cause order noted that Core had appeared at the May calendar call and that Chelladurai's pre-hearing submissions served to confirm that she had received the March 13, 2002 notice of hearing. The May 14 order afforded Chelladurai until May 24 to demonstrate why the case should not be dismissed pursuant to 29 C.F.R. § 18.39. Order to Show Cause dated May 14, 2002. On May 22, Chelladurai filed a request for an extension of time – of "about a week[]" – in which to provide a response to the show cause order. In support of that request, Chelladurai cited travel requirements imposed by her current employment and stated that she was also representing herself in a civil court action in the State of Florida against Core. She also stated that she did not wish to reveal any information about her current employment to Core.¹ Chelladurai stated that, if the ALJ did grant her an extension, she expected to mail her response to the show cause order by June 1, 2002. On May 24, the ALJ granted Chelladurai until June 3 to file a response to the show cause order. Order Extending Time to Respond to Order to Show Cause dated May 24, 2002.

   Relevant to the ALJ's conclusion that Chelladurai had abandoned her hearing request pursuant to Section 18.39(b), the Petitioner elaborates on the work-related reasons for not appearing before the ALJ on May 6 that she cited in her response to the ALJ's show cause order. Pet. for Review at 2, 8-13. None of the Petitioner's assertions undermine the ALJ's findings that Chelladurai had failed to contact his office before May 6 or immediately thereafter without justification, such as an unanticipated emergency. O.D. at 3. Indeed, Chelladurai states in this appeal that she missed the hearing because "many obligations at her [then-]current workplace . . . gained precedence." Petitioner's Brief at 9. That statement confirms the ALJ's conclusion that Chelladurai's failure to appear on May 6 was based on her decision to prioritize her new job over the hearing that she had requested in this case. O.D. at 3.²

   The Petitioner also urges that the ALJ should have issued a decision on the merits of her claim against Core, despite Chelladurai's failure to appear on May 6 or to file a request with the ALJ for a decision on the written record. Pet. for Review at 7. As support, Chelladurai cites Section 18.5, which provides for entry of a default decision against a party who does not appear at hearing. Id. Chelladurai further urges that the Part 18 regulations should be flexibly applied to allow for issuance of a decision on the record by the ALJ in the circumstances present in this case. Id.

   Section 18.39 does provide the option for a judge to issue a decision based solely on a written record of documentary evidence, but only if the parties waive the right to appear in an oral hearing before the judge. 29 C.F.R. § 18.39(a). The option for a decision on a written record is not available in the circumstances in this case, where the Petitioner failed to appear before the ALJ at the designated time and place or to show good cause for such failure. Compare 29 C.F.R. § 18.39(a) and § 18.39(b). In short, an unexcused failure to appear at hearing is addressed by Section 18.39(b), and cannot substitute for a waiver of the right to appear that is filed with the ALJ prior to the hearing date under Section 18.39(a). Section 18.39(b) specifically provides that:

A party shall be deemed to have abandoned a request for hearing if neither the party nor his or her representative appears at the time and place fixed for the hearing and either

(a) prior to the time for hearing such party does not show good cause as to why neither he or she nor his or her representative can appear

or

(b) within ten (10) days after the mailing of a notice to him or her by the administrative law judge to show cause, such party does not show good cause for such failure to appear and fails to notify the administrative law judge prior to the time fixed for hearing that he or she cannot appear.

29 C.F.R. § 18.39(b). In view of Chelladurai's failure to appear, or to provide – either before or after May 6 – adequate justification for not appearing, the ALJ properly dismissed the hearing request as abandoned.

   The Petitioner also mistakenly relies on the default provision of Section 18.5(b) as authority for issuance of a decision on a written record in lieu of a formal hearing in this case. A default decision, as provided for by Section 18.5(b) and referred to in Section 18.39(b), is a decision against a responding party who fails to appear at hearing to defend against a complaint. 29 C.F.R. § 18.5(b); see Allen v. EG&G Defense Materials, Inc., ARB No. 98-073, ALJ No. 89-OFC-1 (Order Denying Interloc. App.) (ARB Sept. 28, 1998). In this case, the Respondent Core did appear before the ALJ on May 6, through an appointed representative. O.D. at 3. As the ALJ stated, dismissal of Chelladurai's hearing request had the effect of affirming the Administrator's finding that Core owed Chelladurai $288.46, rather than the larger sum claimed by Chelladurai.

¹ Chelladurai's May 22 extension request and her June 4 response to the show cause order both refer to Adeo Consulting, Inc. as the responding employer in this case. Chelladurai letter to ALJ dated May 22, 2002; Chelladurai Reply to Show Cause Notice Order at 1. Documents in the record generated by Core indicate that it also does business as Adeo Consulting, Inc. See, e.g., E-mail message dated Dec. 28, 2000, from B. Xavier to Chelladurai, attached to Chelladurai's request for hearing filed Feb. 22, 2002.

² The Petitioner also has submitted documents – and offered to provide still others – to support her statements regarding the work pressures that contributed to her decision not to appear before the ALJ on May 6, 2002. Pet. for Review at 14. The regulations governing an appeal from the ALJ's decision under Subpart I of Part 655 limit the parties to filing documents already included in the record developed before the ALJ. 20 C.F.R. § 655.845(b)(7); see 20 C.F.R. § 655.845(e)(2); see generally 56 Fed. Reg. 37175, 37180 (Aug. 5, 1991) (Notice of proposed rules, 20 C.F.R. Part 655; discussing short deadlines provided for ALJ's hearing and discretionary review by Secretary, pursuant to 8 U.S.C. § 1182(n)(2)(B)). Furthermore, inasmuch as the Petitioner offers such documentation as support for her acknowledgement that she made a conscious decision not to appear before the ALJ on May 6 in favor of attending to job-related matters, a remand to the ALJ for consideration of further evidence regarding that decision simply would not change the dismissal outcome under 29 C.F.R. § 18.39(b). Cf. In re Immigration and Naturalization Serv., ARB No. 99-122, slip op. at 6 (ARB Mar. 31, 2000) (explaining that Board reviewed evidence submitted for the first time on appeal in a case arising under the Service Contract Act, 41 U.S.C.A. § 351, only for the purpose of determining whether the evidence warranted remand for consideration by the Wage and Hour Division Administrator).