U.S. Department of Labor (2026)

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

SHIVA SHANKER PANDIRI,

COMPLAINANT,

ARB CASE NO. 2026-0003

ALJ CASE NO. 2024-LCA-00011

ALJ EVAN H. NORDBY

v.

DATE: August 7, 2026

BYTEDANCE INC.,

RESPONDENT.

Appearances:

For the Complainant:

Shiva Shanker Pandiri; Pro Se; Santa Clara, California

For the Respondent:

Kenneth Edward Raleigh, Esq., Natalie Pate, Esq., and Edward

Hutschenreuter, Esq.; Fragomen, Del Rey, Bernsen & Loewy, LLP;

Washington, DC

Before JOHNSON, Chief Administrative Appeals Judge, and BURRELL,

Administrative Appeals Judge

DECISION AND ORDER

This case arises under the Immigration and Nationality Act (INA) and

implementing regulations, as related to the H-1B nonimmigrant work visa

program.1 On June 17, 2024, Complainant Shiva Shanker Pandiri filed a motion to

voluntarily withdraw his claim against Respondent ByteDance Inc. pending before

a United States Department of Labor Administrative Law Judge (ALJ) which the

ALJ granted on June 18, 2024. On July 10, 2024, Complainant filed a Motion for

Reconsideration which the ALJ denied. On November 21, 2025, more than sixteen

1

8 U.S.C. §§ 1101(a)(15)(H)(i)(b); 20 C.F.R. Part 655, Subparts H and I (2026).

2

months later, Complainant sought review by the Administrative Review Board

(Board or ARB). For the reasons set forth below, we affirm the ALJ’s dismissal of

this case.

BACKGROUND

Complainant, a then-H-1B visa holder, filed a complaint with the U.S.

Department of Labor’s Wage and Hour Division (WHD) against his employer,

ByteDance Inc. His complaint alleged damages totaling $746,656 resulting from

(1) stock benefits not received and (2) discrepancies between the compensation he

received and what was due to him under the Labor Condition Application (LCA)2 for

hours worked from September 2021 to June 2023.3 Complainant claims he would

not have resigned from his position with Respondent “if I was given explanation of

how wage rate was determined and if I was paid and offered the fringe benefits

equally . . . .”4 On March 15, 2024, after an investigation, WHD denied

Complainant’s claim, stating that it determined that Respondent “committed no

violation.”5

On March 29, 2024, Complainant timely appealed the WHD’s determination

to the Office of Administrative Law Judges (OALJ) and requested a hearing. After

initial discovery disclosures and a continuance, the ALJ set a discovery deadline for

July 3, 2024. On June 17, 2024, Complainant filed a Motion to Dismiss, asking to

voluntarily withdraw his complaint. Respondent did not oppose, and the ALJ

granted the Motion to Dismiss the following day, June 18, 2024.

On July 10, 2024, Complainant filed a Motion for Reconsideration (First

Motion for Reconsideration), stating, “I request the Office of Administrative Law

Judges to reopen my case and allow me to proceed from outside the United States

electronically with the amendments to the complaint.”6 Respondent opposed

8 U.S.C. § 1182 (n)(1)(A)(i)(II) (“No alien may be admitted or provided status as an

H-1B nonimmigrant in an occupational classification unless the employer . . . is offering

and will offer during the period of authorized employment . . . the prevailing wage level for

the occupational classification in the area of employment . . . based on the best information

available as of the time of filing the application . . . .”).

2

3

Complainant’s Disclosures at 3.

4

Id.

5

Determination Letter, Case #1987898, Wage and Hour Div. (Mar. 15, 2024) at 1.

6

First Motion for Reconsideration at 1.

3

Complainant’s request, and the ALJ issued an Order Denying Motion for

Reconsideration on July 23, 2024. The ALJ determined that the Motion for

Reconsideration was not timely filed because, under the OALJ Rules of Practice and

Procedure, “[m]otions to reconsider a decision must be filed within ten days of

service of the decision.”7

On July 28, 2024, five days after the ALJ’s denial, Complainant filed a Reply

to Respondent[’]s [O]pposition to Motion for Reconsideration and [R]equest to

[R]econsider the [D]enial and [M]odify [P]revious [O]rders (Second Motion for

Reconsideration). In that filing, Complainant stated his desire to refile his claim

“later with better preparation with OALJ or in other forums where I can pursue my

claims to the full extent.”8

He went on to restate his prior allegations against Respondent and make new

ones, including fraudulent and deceptive employment and business practices,

claims of a hostile work environment, and affiliation with the Chinese Communist

Party.9 The ALJ did not rule on Complainant’s second motion for reconsideration.

More than a year later, on September 30, 2025, Complainant submitted a

Request for Modification and Equitable Tolling (Third Motion for Reconsideration).

The ALJ did not rule on Complainant’s third motion for reconsideration, and

Complainant states that it was rejected from the docket “on the basis that the case

was closed.”10

On November 21, 2025, 521 days after the ALJ issued the Order of Dismissal,

Complainant filed a Notice of Appeal with Request for Remand and Equitable

Tolling (Petition for Review) with the Board. In it, Complainant states that to

pursue his H-1B claim, he applied for two extensions to remain in the United

States.11 Complainant states further that he decided to leave the United States

while he was waiting for his H-1B claim to arrive on the docket and that, when he

Order Denying Motion for Reconsideration at 1 (citing 29 C.F.R. § 18.93). Under the

applicable rule, Complainant’s Motion for Reconsideration needed to be filed on or before

June 28, 2024.

7

8

Second Motion for Reconsideration at 3.

9

Id. at 5-6.

10

Opening Brief of Petitioner (Comp. Br.) at 4.

11

Petition for Review at 8.

4

voluntarily dismissed his case with the ALJ, his concurrent complaints with the

Equal Employment Opportunity Commission (EEOC) and the Department of

Justice (DOJ) were still under investigation.12 He claims he received rights to sue as

of November 2024 and withdrew his complaint from the OALJ in order to pursue

his claims fully in other forums. Once he realized that he needed to file his EEOC or

DOJ lawsuit in person and that the OALJ is the proper forum to pursue his H-1B

claims, he filed his first motion for reconsideration, which the ALJ denied.13

On appeal, Complainant argues that finality does not attach to the ALJ’s

Order of Dismissal because the ALJ did not rule on his Second and Third Motions

for Reconsideration. He argues further that equitable tolling and equitable estoppel

apply because “agency inaction and concealment prevented timely resolution

despite Complainant’s diligence.”14

The dispositive issues before the Board in this case are (1) the timeliness of

Complainant’s appeal and whether successive Motions for Reconsideration before

the ALJ extend the time for a complainant to file an appeal with the Board;

(2) whether equitable tolling should apply; and (3) whether equitable estoppel is

warranted.

JURISDICTION AND STANDARD OF REVIEW

The Board has jurisdiction to review the ALJ's decision pursuant to 20 C.F.R.

§ 655.845.15 Under the Administrative Procedure Act, the Board, as the Secretary of

Labor’s designee, acts with “all the powers [the Secretary] would have in making

the initial decision . . . .”16 The Board therefore has plenary power to review an

ALJ’s factual and legal conclusions de novo.17

12

Id. at 5-6.

13

Id. at 6.

14

Comp. Br. at 2.

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB

decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020).

15

5 U.S.C. § 557(b); Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Macks USA, Inc.,

ARB No. 2022-0038, ALJ No. 2017-LCA-00013, slip op. at 7-8 (ARB Feb. 21, 2023) (citation

omitted).

16

Macks USA, Inc., ARB No. 2022-0038, slip op. at 8 (citing Mehra v. W. Va. Univ.,

ARB No. 2021-0056, ALJ No. 2017-LCA-00002, slip op. at 4 (ARB Dec. 21, 2021)).

17

5

DISCUSSION

1. Timeliness of Complainant’s Petition for Review

Once the ALJ issued the Order of Dismissal on June 18, 2024, Complainant

had 30 days to file an appeal with the Board.18 This put the appeal deadline on July

18, 2024. Here, however, we have a motion for reconsideration and an order denying

that motion. In Phox v. The Savoy at 21C, the Board held that a timely motion for

reconsideration following an ALJ’s decision and order extends the deadline for filing

an appeal with the Board until the ALJ rules on the motion.19 However, an

untimely motion for reconsideration does not extend the appeal deadline.20

Complainant’s motion for reconsideration was untimely. Pursuant to the

OALJ Rules of Practice and Procedure, Complainant had ten days from the date the

ALJ issued his Order of Dismissal in which to file a motion for reconsideration.21

Thus, to be timely, Complainant had to file a motion for reconsideration by June 28,

2024. On July 10, 2024, twelve days after the expiration of the time in which he

could timely seek reconsideration, Complainant filed the First Motion for

Reconsideration, which the ALJ denied on July 23, 2024, citing untimeliness.22

Because Complainant’s First Motion for Reconsideration was untimely, it did

not affect the deadline to seek review of the ALJ’s decision by the Board. To be

clear, if Complainant had timely filed his Motion for Reconsideration, the deadline

for filing his Petition for Review would have been reset to thirty days from the date

20 C.F.R. § 655.845(a) (“To be effective, such petition shall be received by the Board

within 30 calendar days of the date of the decision and order.”).

18

Phox v. The Savoy at 21C, ARB No. 2021-0057, ALJ No. 2019-FDA-00014, slip op. at

2-3 (ARB Jan. 6, 2022).

19

20

Id. at 3.

29 C.F.R. § 18.93 (“A motion for reconsideration of a decision and order must be filed

no later than 10 days after service of the decision on the moving party.”).

21

22

Order Denying Motion for Reconsideration at 1.

6

the ALJ issued the Order Denying Motion for Reconsideration.23 As the Supreme

Court set forth in Arellano v. McDonough, this is distinct from “tolling,” which

“‘effectively extends an otherwise discrete limitations period set by Congress.’”24

Here, Complainant did not file the Petition for Review until November 21,

2025, more than 500 days after the Order Denying Motion for Reconsideration and

more than 520 days after the ALJ’s Order of Dismissal. Thus, Complainant’s appeal

was untimely.

Complainant argues that his Petition for Review was not untimely because

the time in which to seek review would only run from the date on which the ALJ

issued an order disposing of his Second Motion for Reconsideration, which the ALJ

did not rule on.25 For the following reasons, this argument is without merit.

The Seventh Circuit Court of Appeals addressed this issue in Saban v. U.S.

Department of Labor. In Saban, the Seventh Circuit held “there is no doubt that a

second or successive motion to reconsider does not toll the deadline for filing the

petition for judicial review because otherwise a petitioner could, at will, postpone

the deadline for that filing indefinitely.”26 The court explained, “[t]he time limit [for

taking appeals] would be a joke if parties could continually file new motions,

preventing the judgment from becoming final.”27

Although the term “tolling” is sometimes used to describe the effect that a timely

filed motion for reconsideration has on the time in which to file an appeal, this is something

of a misnomer. A more precise statement is that the time in which an appeal may be filed

only begins to run on the date on which the ALJ rules upon the timely filed motion for

reconsideration. Cf. FED. R. APP. P. 4(A) (“If a party files in the district court any of the

following motions under the Federal Rules of Civil Procedure—and does so within the time

allowed by those rules—the time to file an appeal runs for all parties from the entry of the

order disposing of the last such remaining motion [.]”).

23

Arellano v. McDonough, 598 U.S. 1, 6 (2023) (quoting Lozano v. Montoya Alvarez, 572

U.S. 1, 10 (2014)).

24

See Reply Br. at 6 (“Where reconsideration submissions are accepted, briefed, and

opposed but never adjudicated, finality does not attach, and appeal deadlines do not run.”).

Had the ALJ responded to the subsequent motions for reconsideration, it might have

reduced confusion, but the ALJ’s omission does not change the legal analysis.

25

26

Saban v. U.S. Dep’t. of Lab., 509 F.3d 376, 379 (7th Cir. 2007).

27

Id. (quoting Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986)).

7

Other federal appellate courts have reached the same conclusion. In one

decision, the Tenth Circuit held that “a second and successive motion to reconsider

does not again toll the deadline to seek judicial review of the Board’s order of

dismissal or denial of the first motion to reconsider.”28 In another case, the Fifth

Circuit stated, “[t]his court has previously held that successive motions under

Federal Rule of Civil Procedure 59(e) for reconsideration or rehearing generally do

not toll the appeals period . . . .”29

The Board has previously adopted the principles employed by federal courts

with regard to the effect of a motion for reconsideration on the time in which a party

may seek review of an ALJ’s decision.30 We see no reason here to diverge from the

view taken by the Courts for the Seventh, Tenth, and Fifth Circuits that successive

motions for reconsideration have no effect on the time in which to seek review of an

ALJ’s decision.

Accordingly, Complainant’s Petition for Review, filed on November 21, 2025,

was untimely, and the subsequent motions for reconsideration did not extend the

deadline.

2. Equitable Tolling

Although his appeal was untimely, Complainant argues that his deadline to

appeal should be equitably tolled. The Board has recognized that the time to file an

appeal with the Board is not jurisdictional and, therefore, is subject to equitable

modification, including equitable tolling.31

Smith v. U.S. Dep’t of Lab., 775 F. App’x 950, 952 (10th Cir. 2019) (holding that a

driver’s second and successive motion for reconsideration did not extend time period for

seeking judicial review with respect to the Board’s initial dismissal order and its denial of

trucker’s first motion for reconsideration).

28

In re Stangel, 68 F.3d 857, 859 (5th Cir. 1995) (holding that a debtor’s second

successive motion for reconsideration of bankruptcy court’s dismissal order did not extend

time for appealing dismissal order).

29

See, e.g., Duggan v. FreedomRoads LLC, ARB No. 2026-0041, ALJ No. 2026-CFP00002, slip op. at 2 (ARB May 29, 2026); Phox, ARB No. 2021-0057, slip op. at 2-3; Henin v.

Soo Line R.R. Co., ARB No. 2019-0028, ALJ No. 2017-FRS-00011, slip op. at 2 (ARB Mar.

22, 2019).

30

Vicuna v. Westfourth Architecture, P.C., ARB No. 2015-0034, ALJ No. 2012-LCA00023, slip op. at 3 (ARB Apr. 6, 2015).

31

8

In determining whether to toll a limitations period, the Board has recognized

several principal situations in which equitable tolling may be warranted. Those

include: “(1) when the movant has raised the precise statutory claim in issue but

has done so in the wrong forum; (2) when the movant has in some extraordinary

way been prevented from filing; and (3) when the movant has some excusable

ignorance of the respondent’s discriminatory act.”32 The Board has held “that the

foregoing circumstances are not exclusive, and a complainant’s inability to satisfy

one is not necessarily fatal for [his or] her untimely appeal.”33 Nonetheless,

equitable tolling is a rare and “extraordinary measure that applies only when

plaintiff is prevented from filing despite exercising that level of diligence which

could reasonably be expected in the circumstances.”34 The party seeking equitable

relief “bears the burden of establishing the applicability of the equitable tolling

principles.”35 Although a pro se complainant “is afforded certain latitudes as a selfrepresented litigant, [he] is not excused from the rules of practice and procedure

applicable to this proceeding merely because of his pro se status.”36

Because Complainant does not assert that he had some excusable ignorance

of the respondent’s discriminatory act, we will focus our attention on the first two

commonly recognized scenarios where equitable tolling may apply as listed above.

A. Precise Statutory Claim Raised in the Wrong Forum

Although Complainant claims that “[m]isstatements from the

investigator and Regional Director created confusion about proper forums,”

the record does not indicate that Complainant filed the precise statutory

Martin v. Paragon Foods, ARB No. 2022-0058, ALJ No. 2021-FDA-00001, slip op. at

9 (ARB June 8, 2023).

32

See, e.g., Gemoll v. Microsoft Corp., ARB No. 2025-0016, ALJ No. 2024-SOX-00001,

slip op. at 6-7 (ARB May 14, 2026) (citing Smith v. Franciscan Physician Network, ARB No.

2022-0065, ALJ No. 2020-ACA-00004, slip op. at 4 (ARB Jan. 13, 2023) (Order Denying

Motion to Dismiss and Reestablishing Briefing Schedule) (citations omitted)); Mazenko v.

Pegasus Aircraft Mgmt., LLC., ARB No. 2021-0032, ALJ No. 2019-AIR-00001, slip op. at 3

(ARB Sept. 7, 2021) (Order Accepting Complainant’s Appeal and Setting Briefing Schedule)

(internal citation omitted).

33

34

Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 322 (2d Cir. 2004).

35

Vicuna, ARB No. 2015-0034, slip op. at 3.

Jeanty v. Lily Transp. Corp., ARB No. 2019-0005, ALJ No. 2018-STA-00013, slip op.

at 12 (ARB May 13, 2020) (citations omitted).

36

9

claim in any forum other than WHD.37 Furthermore, Complainant

contradicts his assertion when he claims that, “[t]he record shows sustained

diligence: pursuit of relief in appropriate forums . . . .”38 If he diligently

pursued relief in appropriate forums, then he was not misled or confused

about the appropriate forum. Complainant has not connected how perceived

misstatements by WHD affected his ability to timely file a motion for

reconsideration with the ALJ or a timely petition for review with the Board.

B. Prevented From Filing in Some Extraordinary Way

Complainant alleges that he faced extraordinary circumstances

preventing him from filing because “the Department exceeded mandatory

regulatory timelines, failed to correct the administrative record, delayed or

rejected filings for incorrect reasons.”39 He argues further that “agency

inaction and concealment prevented timely resolution despite Complainant’s

diligence.”40 He also cites the Department’s failure to provide him with the

investigative file and the Department’s narrowing the scope of investigation

as causing his delay.41

Despite Complainant’s assertions, none of the foregoing circumstances

are “extraordinary” within the meaning of the doctrine. “‘Extraordinary

circumstances’ is a very high standard that is satisfied only in cases in which

even the exercise of diligence would not have resulted in timely filing.”42

Complainant’s assertions reflect, at most, ordinary procedural disputes:

disagreement with the scope of an investigation, dissatisfaction with the pace

of agency action, routine docketing or filing issues, and frustration with

procedural rulings.

37

Reply Br. at 3.

38

Id. at 5 (emphasis added).

39

Comp. Br. at 2.

40

Id.

41

Id. at 9.

Romero v. Coca Cola Co., ARB No. 2010-0095, ALJ No. 2010-SOX-00021, slip op. at

5 (ARB Sept. 30, 2010) (citing Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999)

(complete psychiatric disability during the entirety of the limitations period); AlvarezMachain v. United States, 107 F.3d 696 (9th Cir. 1996) (incarceration in a foreign country

for the entirety of the limitations period)).

42

10

Complainant expressed a desire to proceed electronically from outside

the United States and demonstrated the ability to do so.43 Complainant has

not stated facts that demonstrate why he was prevented from timely filing.

We have considered the other contentions presented by Complainant relating

to the applicability of equitable tolling and conclude that they lack merit.

Because Complainant has failed to demonstrate that he raised his precise

statutory claim in the wrong forum, that he was prevented from filing in some

extraordinary way, that he had some excusable ignorance of the respondent’s

discriminatory act, or any other meritorious reason that equitable tolling should

apply, we find that equitable tolling of the appeals deadline is not warranted in this

case.

3. Equitable Estoppel

Complainant raised for the first time in his Reply Brief an equitable estoppel

argument. “The Board, like the federal courts, does not generally consider

arguments raised for the first time on appeal, nor evidence submitted for the first

time on appeal . . . .”44 Nonetheless, we address this issue to dispel any doubt.

As the Board discussed in Martin v. Paragon Foods, “[e]quitable estoppel

examines the [employer or other] defendant’s conduct and the extent to which the

[complainant] has been induced to refrain from exercising his rights.”45 It applies

when “a respondent or defendant prevents ‘a complainant from suing in time by, for

example, promising not to plead the limitations defense or by presenting fabricated

evidence to negate any basis for a claim.’”46

Complainant alleges that “coordinated and fraudulent concealment of

material facts by the employer and related actors prevented timely investigation,

determination, and adjudication.”47 It is unclear as to which facts this bare

See First Motion for Reconsideration at 2 (“I request the Office of Administrative Law

Judges to reopen my case and allow me to proceed from outside the United States

electronically with the amendments to the complaint.”).

43

44

Martin, ARB No. 2022-0058, slip op. at 15.

45

Id. at 8.

Id. (quoting Overall v. Tenn. Valley Auth., ARB Nos. 1998-0111, -0128, ALJ No.

1997-ERA-00053, slip op. at 39 (ARB Apr. 30, 2001)).

46

47

Reply Br. at 4.

11

allegation refers or who the unnamed “related actors” are. Further, it appears that

Complainant’s unsubstantiated allegation refers to a belief that Respondent

concealed material facts before the WHD investigator, which does not support an

allegation that Respondent prevented Complainant from timely filing his appeal

with the Board. Similarly, with regard to his June 17, 2024 Motion to Dismiss,

Complainant states:

Complainant reviewed dismissal procedures and

reasonably understood, based on the Federal Rules of Civil

Procedure, that a voluntary dismissal, whether by notice

or court order, permits refiling. Acting on that

understanding, Complainant sought dismissal using

language consistent with refiling, as reflected in the

dismissal order itself. Nothing in the order advised that

refiling would be barred or that the dismissal would

operate as a forfeiture of rights. Consistent with this

intent, Complainant before dismissal communicated

directly to Respondent that the matter would be refiled,

placing Respondent on notice that the dismissal was

procedural and protective.[48]

Although Complainant allegedly communicated to Respondent his intent to

refile his complaint, Complainant does not allege that Respondent induced him to

file a motion to dismiss or otherwise prevented him from refiling his case with the

ALJ or filing a timely appeal with the Board.

Because Complainant has failed to substantiate his claim that Respondent or

anyone else prevented him from timely filing an appeal, equitable estoppel is not

warranted in this case.

Lastly, Complainant alleges prejudice against him as a result of

WHD’s alleged failure to include “evidence central to INA compliance.”49

He cites “delay, investigative limitations, and procedural uncertainty”50 as

48

Id. at 3-4.

49

Id. at 11.

50

Id. at 13.

12

causing “concrete prejudice.”51 Complainant fails, however, to refer to any

specific instance of “damage or detriment to [his] legal rights or claims.”52

In KP & L Electrical Contractors, Inc., the Board held that a party

seeking to establish prejudice before the Board “must show actual prejudice,

not just allege potential prejudice.”53 The Board held that KP & L did not

make a showing of actual prejudice sufficient to justify dismissal despite a

lapse of three years and seven months from the time WHD issued its finding

and the time it referred the case to the OALJ.54 The Board stated that,

“[s]uch generalized claims of prejudice simply do not suffice.”55

Because Complainant has failed to allege any specific instances of

damage or detriment to his legal rights or claims, we conclude that

Complainant was not prejudiced by any action or inaction by WHD.

CONCLUSION

For the foregoing reasons, we AFFIRM the ALJ’s Order of Dismissal and

AFFIRM the ALJ’s Order Denying Motion for Reconsideration as untimely filed.

Accordingly, the complaint is hereby DENIED.

SO ORDERED.

RANDEL K. JOHNSON

Chief Administrative Appeals Judge

THOMAS H. BURRELL

Administrative Appeals Judge

51

Id. at 2.

52

Prejudice, BLACK’S LAW DICTIONARY (7th ed. 1999).

KP & L Elec. Contractors, Inc., ARB No. 1999-0039, ALJ No. 1996-DBA-00034, slip

op. at 5 (ARB May 31, 2000) (citations omitted).

53

54

Id. at 6.

55

Id.