Dongsheng Huang v. Administrative Review Board, et al

Filing

UNPUBLISHED OPINION FILED. [14-20006 Affirmed ] Judge: CDK , Judge: EGJ , Judge: CH. Mandate pull date is 10/03/2014 [14-20006]

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Date Filed: 08/12/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20006
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
August 12, 2014
Lyle W. Cayce
Clerk

DONGSHENG HUANG,
Plaintiff - Appellant

v.

ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT OF
LABOR; THOMAS E. PEREZ, SECRETARY, DEPARTMENT OF LABOR,
Defendants - Appellees

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CV-35
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
Dongsheng Huang, proceeding pro se, challenges the decision of the
Department of Labor’s Administrative Review Board awarding him
approximately $180,000 in damages, including interest, for labor violations
and retaliation by his former employer.

He claims that he is entitled to

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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damages in excess of $5 million. The district court dismissed his claims; for
the following reasons, we AFFIRM the judgment of the district court.
I.

Factual and Procedural Background

Dongsheng Huang is a citizen of China.

On July 12, 2005, Ultimo

Software Solutions, Inc. (“Ultimo”) offered Huang employment in the United
States under the H-1B visa provision. See 8 U.S.C. § 1101(a)(15)(H)(i)(b).
Huang entered the United States on March 22, 2006, and moved into housing
in California provided by Ultimo. On June 4, 2006, Ultimo required Huang to
relocate to Houston, Texas, at Huang’s expense (except for air travel).
On October 16, 2006, Huang complained to the Department of Labor
(“DOL”) by telephone, and again in writing on April 24, 2007, that Ultimo was
failing to provide him sufficient productive work or pay him salary or benefits
as promised, in violation of his H-1B Labor Condition Application. 1 See 8
U.S.C. § 1182(n); 20 C.F.R., Chapter V, Pt. 655, Subpart. I (governing the
enforcement of H-1B Labor Condition Applications).

When the DOL

investigated, it did not find Huang’s name listed as one of Ultimo’s H-1B visa
employees. Huang gave the DOL permission to release his name to Ultimo as
part of the investigation. The DOL Wage & Hour Administrator found that
Ultimo had not paid Huang from March 22, 2006 (when Huang arrived in the
United States), until June 4, 2006 (when Ultimo required Huang relocate to
Houston).

The DOL concluded that Huang’s move to Houston effectively

terminated his employment with Ultimo. The DOL ordered Ultimo to pay
Huang back wages of $11,744.48. In relaying this decision to Huang, the DOL
incorrectly informed him that his H-1B visa had already been canceled. Huang
Huang’s complaint accused Ultimo of engaging in “benching”—offering an employee
full-time employment under the H-1B visa program but not giving him productive work.
Federal law provides that an employer may not fail to pay an H-1B employee the promised
salary during periods when the employee is not given productive work. 8 U.S.C.
§ 1182(n)(2)(C)(vii)(I)
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sought whistleblower protection as a result. See 8 U.S.C. § 1182(n)(2)(C)(iv).
Ultimo did not contest the DOL Wage & Hour Administrator’s decision.
Huang challenged the decision and asked for a hearing before the
Administrative Law Judge (“ALJ”), claiming that he was entitled to greater
compensation.

Huang asked the ALJ to find that: (1) he was paid an

improperly low wage; (2) Ultimo

had provided false responses to

interrogatories and offered false documents into evidence; (3) Ultimo had
retaliated against Huang, violating his whistleblower protection by sending a
visa revocation request after learning about his complaint to the DOL and its
investigation; and (4) Ultimo was liable for wages, benefits, living and travel
expenses, causing emotional distress, submitting false documents, and
discovery misconduct.
Following a two-day hearing in August 2008, the ALJ found that Huang
was still employed by Ultimo following his relocation to Houston and that
Huang was owed back-pay through July 12, 2007, the date that Ultimo sought
to cancel his H-1B visa. The ALJ also determined that Ultimo had retaliated
against Huang and violated the terms of Huang’s LCA. The ALJ awarded
Huang $144,158.89 for back-pay, health benefits, 401(k) contributions,
litigation costs, and travel expenses. However, the ALJ declined to award
compensatory damages for Huang’s alleged medical problems resulting from
the stress of his dispute with Ultimo because there was insufficient evidence
in the record to support Huang’s claim for damages. The ALJ also found no
legal basis supporting a punitive damages award. Huang and Ultimo both
appealed the ALJ’s decision to the Administrative Review Board (“ARB”) of the
DOL. The ARB affirmed the decision of the ALJ. Huang filed a petition to
reconsider, which the ARB denied.
The ALJ ordered the Wage & Hour Administrator to calculate pre- and
post-judgment interest; the Administrator found that Ultimo owed $37,632.46
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in interest.

Huang opposed this calculation, arguing that the Wage & Hour

Administrator used the wrong interest rate. The Wage & Hour Administrator
responded that it had calculated the interest according to the ALJ’s order. The
ALJ affirmed the Wage & Hour Administrator’s interest calculation and
ordered Ultimo to pay Huang. Huang moved for reconsideration, but the
motion was denied. Huang then petitioned the ARB for review of the ALJ’s
interest award. The ARB declined to accept Huang’s petition for review, and
the ALJ’s decision became final and reviewable on May 30, 2012.
On January 5, 2012, before the proceedings before the ARB ended,
Huang brought this lawsuit against the ARB in federal district court pursuant
to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06. The district
court stayed the case until the administrative action was final. On May 30,
2012, the stay was lifted, and Huang filed his first amended complaint on July
23, 2012. The ARB moved to dismiss Huang’s complaint; the district court
granted the motion and dismissed the case with prejudice on the ground that
Huang had failed to join an indispensable party under Federal Rule of Civil
Procedure 12(b)(7) and had failed to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Huang moved for reconsideration of the order, but the
district court denied the motion, finding that the motion presented the same
legal arguments that the court had addressed in its order dismissing the case.
Huang timely appealed to this court.
II.

Standard of Review

We review a district court’s order granting a motion to dismiss de novo.
Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012). The final
decision of the ARB must be affirmed unless it is arbitrary, capricious, an
abuse of discretion, or otherwise contrary to law, or unless the decision is not
supported by substantial evidence. See 5 U.S.C. § 706(2)(A); Macktal v. U.S.
Dep’t of Labor, 171 F.3d 323, 326 (5th Cir. 1999).
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III.

Analysis

Huang argues that the ALJ erred by failing to: (1) award damages for
employee benefits; (2) award damages based on an expected annual salary
raise; (3) award damages for front-pay; (4) expunge allegedly false records
relating to Huang’s Ultimo employment; (5) award compensatory damages for
pain, suffering, humiliation, and depression; (6) award punitive damages; (7)
award a tax enhancement; and (8) properly calculate pre- and post-judgment
interest. 2 Huang also argues that the ARB, in affirming the ALJ’s decision,
failed to award his appellate costs. None of these arguments have merit.
Before addressing the merits, we briefly address Huang’s assertion that
the district court erred in granting the motion to dismiss because the district
court failed to limit its review to the contents of the pleadings. While a district
court is typically limited to reviewing the pleadings and attachments thereto,
see Fed. R. Civ. P. 12(b)(6), the court may also consider documents that a
defendant attaches to a motion to dismiss when those documents “are referred
to in the plaintiff’s complaint and are central to [his] claim,” see Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000) (citation

Huang also raises a number of other challenges that will not be considered. He
challenges the district court’s order denying reconsideration of its order granting the motion
to dismiss. Because we affirm the district court’s order granting the motion to dismiss, which
is reviewed de novo, we need not consider the order denying reconsideration, which was
premised on the same arguments and facts and is reviewed under the lower abuse of
discretion standard. See LeClerc v. Webb, 419 F.3d 405, 412 n.13 (5th Cir. 2005). Huang also
challenges the district court’s ruling that dismissal was proper under Rule 12(b)(7). However,
because we affirm the judgment of the ALJ on other grounds, we need not consider this
argument. Next, Huang appeals the district court’s order denying his motion to strike the
ARB’s response brief because it was filed one day late. Huang has not shown how he was
prejudiced by this tardy filing, so any error in denying the motion to strike would be harmless.
See Howard v. Gonzales, 658 F.2d 352, 357 (5th Cir. 1981). Finally, Huang claims that
Ultimo committed misconduct during the administrative proceedings and asks this court to
“punish” Ultimo. Because Huang does not explain how he was prejudiced by this misconduct,
or provide a legal basis through which we may “punish” Ultimo, we decline to do so.
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and internal quotation marks omitted). In attaching these documents, “the
defendant merely assists the plaintiff in establishing the basis of the suit, and
the court in making the elementary determination of whether a claim has been
stated.” Id. at 499. Here, Huang’s claims are related to the ALJ’s order and
the evidence presented to the ALJ during the administrative proceedings.
While Huang did not attach these documents to his complaint (although he did
attach some), he expressly referenced these documents in the body of his
complaint by challenging the basis for the ALJ’s decision. The ARB attached
all the relevant documents to its motion to dismiss.
permissibly considered these documents.

The district judge

Thus, to the extent Huang

challenges the district court’s reliance on the ALJ’s decision or excerpts from
the administrative record, we find no error.
Turning to Huang’s individual challenges, he first argues that the ALJ
failed to award damages for various employee benefits, such as potential green
card sponsorship, 3 vacation pay, and loss of tax benefits in the form of a $600
economic stimulus payment that he was not eligible for because he was not
paid a proper salary. However, his claim is entirely speculative, and he has
failed to support it with citations to the record showing that he was entitled to
these benefits or legal authority that the ALJ could award such damages.
Accordingly, we consider this argument waived. See Jason D.W. v. Houston
Indep. Sch. Dist., 158 F.3d 205, 212 (5th Cir. 1998) (“[Appellant] does not
present arguments or authority to support his position on these issues,
however, and we therefore consider them waived.”); see also United States v.
Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010) (“It is not enough to merely
mention or allude to a legal theory. . . . [A]mong other requirements to properly
Huang claims that Ultimo promised to sponsor him for a green card after one year’s
employment. He seeks $50,000 in damages based on the fact that Ultimo did not sponsor
him for a green card.
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raise an argument, a party must ordinarily identify the relevant legal
standards and ‘any relevant Fifth Circuit cases.’” (internal citations omitted)).
Second, Huang argues that the back-pay award failed to include a five to
ten percent annual salary increase that was allegedly promised to Huang in
an email from Ultimo. However, Huang’s entitlement to relief is limited to pay
he would have earned at the salary rate set by the LCA.

See 8 U.S.C.

§ 1182(n)(1) & (n)(2)(D). The LCA only states that Huang’s annual salary is
$60,000 and does not specify that Huang was entitled to an annual raise. Thus,
we find no error in the ALJ’s calculation of back-pay.
Third, Huang sought an award of front-pay. Because reinstatement was
not an option in this case, the ALJ held that Huang was entitled to receive
damages in the form of his salary between the date that Ultimo terminated
Huang, July 12, 2007, to the date that Huang’s H-1B visa expired, September
15, 2008. Huang seeks additional damages in the form of his salary and
benefits from September 16, 2008, until he finds new employment. He claims
that his visa would have been extended by Ultimo. However, Ultimo did not
extend his visa, and there is insufficient evidence to show that Ultimo planned
to do such, so we find that the ALJ’s decision to limit Huang’s damages to
salary that he would have received until September 15, 2008, is not arbitrary
or capricious.
Fourth, Huang requests that the court expunge allegedly false records
relating to his Ultimo employment. Huang failed to make this request to the
ALJ or the ARB, so the DOL did not have an opportunity to consider whether
expungement was proper. Additionally, Huang offers no legal authority that
this court has the power to direct the DOL to expunge records in this situation,
so we decline to do so. See Jason D.W., 158 F.3d at 212.
Fifth, Huang challenges the ALJ’s refusal to award compensatory
damages for pain, suffering, humiliation, and depression.
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The ALJ

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acknowledged that compensatory damages are available under the relevant
whistleblower statute, but denied Huang such compensation because Huang
presented no testimony during the trial to support his claim that he was
entitled to $100,000 in damages. See In the Matter of Douglas A. Tritt, No. 88ERA-29, 1994 WL 897368, *7–9, ALJ’s Recommended Decision (D.O.L. Aug.
29, 1994). Additionally, the ALJ found that there were no documents in the
record to support his claims for distress or for treatment for his symptoms. On
appeal, Huang describes his poor health in some detail, but he fails to point to
a single piece of evidence in the record, such as a physician’s treatment note or
testimony at trial regarding his ailments, showing that he is entitled to
damages for pain, suffering, humiliation, or depression. Additionally, he now
requests $500,000 in damages.

Since he has not shown that the ALJ’s

conclusion that there was no evidence in the record to support his claims was
erroneous, the ALJ’s decision was not arbitrary or capricious.
Sixth, Huang argues that the ARB erred in denying his request for $5
million in punitive damages.

However, the ALJ correctly explained that

federal law did not authorize the ARB to award punitive damages in Huang’s
situation. See, e.g., 8 U.S.C. § 1182; 20 C.F.R. § 655.801(b). Huang claims that
punitive damages need not be explicitly authorized.

However, assuming

arguendo that the ARB could award such damages, Huang has not shown that
the ARB’s decision not to award $5 million in punitive damages is arbitrary or
capricious.
Seventh, Huang claims that the ARB must award him compensation for
the increased taxes he might pay as a result of receiving damages in a lump
sum. However, Huang has not pointed to any legal authority stating that
Ultimo must pay damages equal to any change in tax burden.

Additionally,

Huang has not indicated that he requested this compensation from the ALJ,
nor has he identified the actual increase in his tax burden. This claim is purely
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speculative, so the ALJ’s refusal to award damages for a possible increase in
taxes is not arbitrary and capricious. See, e.g., Masinter v. Tenneco Oil Co.,
929 F.2d 191, 194 (5th Cir. 1991).
Eighth, Huang asserts that the ALJ did not properly calculate pre- and
post-judgment interest. Huang claims that he is owed approximately $189,000
in interest instead of the $37,632.46 awarded by the ALJ. Having reviewed
the relevant caselaw, facts, and computations performed by the ALJ, we find
that the ALJ properly calculated interest. See Doyle v. Hydro Nuclear Services,
Nos. 99-041, 99-042, & 99-012, 2000 WL 694384, *15–18, ARB Decision (D.O.L.
May 17, 2000) (describing the methodology ALJs must use to calculate interest
in H-1B whistleblower cases).
Finally, Huang seeks costs on appeal to the ARB as the “prevailing
party.” Although Huang prevailed before the ALJ (and was properly awarded
costs), he did not prevail before the ARB, since the review board rejected his
arguments in support for a higher damage award. Thus, Hung was not entitled
to his appellate costs.
IV.

Conclusion

For the foregoing reasons, we AFFIRM the judgment of the district court.

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