Mark Watson v. Chief Administrative Law Judge, et al

Filing

UNPUBLISHED OPINION FILED. [10-40411 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 12/06/2010 [10-40411]

Mark Watson v. Chief Administrative Law Judge, et al

Doc. 0

Case: 10-40411

Document: 00511264561

Page: 1

Date Filed: 10/15/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 15, 2010 N o . 10-40411 S u m m a r y Calendar Lyle W. Cayce Clerk

M A R K J. WATSON, P la in t if f ­ A p p e lla n t v. C H I E F ADMINISTRATIVE LAW JUDGE; UNITED STATES D E P A R T M E N T OF LABOR; BANK OF AMERICA; ELECTRONIC DATA S Y S T E M S CORPORATION; IBM CORPORATION; UNITED STATES D E P A R T M E N T OF HOMELAND SECURITY; UNITED STATES D E P A R T M E N T OF STATE, D e fe n d a n t s ­ A p p e lle e s

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 4:09-CV-310

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* M a r k J. Watson, pro se, appeals the district court's dismissal of his case fo r lack of subject matter jurisdiction. We affirm.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Dockets.Justia.com

Case: 10-40411

Document: 00511264561

Page: 2

Date Filed: 10/15/2010

No. 10-40411 I . FACTUAL AND PROCEDURAL HISTORY I n 2003, Watson filed a complaint with the Wage and Hour Division of the U .S . Department of Labor ("WHD"), alleging that Electronic Data Systems Corp. (" E D S " ), his former employer, terminated his employment and hired an H1-B fo r e ig n worker in his place in violation of the Immigration and Nationality Act (" I N A " ). See 8 U.S.C. § 1182(n). Watson also filed complaints against Bank of A m erica , N.A. ("BOA") and IBM Corp. ("IBM"), alleging that they had unlawfully h ir e d H-1B foreign workers to fill positions for which he had applied. W H D declined to investigate Watson's complaints because there was "no r e a s o n a b le cause" to believe that a violation of the INA had occurred. Watson r e q u e s te d hearings for each complaint, but various Administrative Law Judges g r a n t e d summary judgment to EDS, BOA, and IBM. Watson then appealed each o f these adverse decisions to the Department of Labor's Administrative Review B o a r d (the "Board"). The Board affirmed the EDS and BOA decisions on May 3 1 , 2005, and declined to review the IBM decision on October 20, 2006. O n June 22, 2009, Watson filed this lawsuit in the Eastern District of T e x a s , claiming that EDS, BOA, and IBM had violated the INA and that various federal agencies, including the Department of Labor, had wrongfully failed to in v e s t ig a t e his complaints.1 According to Watson, this lawsuit is "an appeal of a final agency action (a.k.a. application for writ of mandamus) filed in the d is t r ic t court under the jurisdictional authority of 28 U.S.C. § 1361 [the federal

This is not Watson's first time in federal court on these claims. Including the instant case, he has filed no less than five federal lawsuits based on substantially similar factual allegations, resulting in at least nine written opinions, none of which have resolved even a single issue in his favor. See Watson v. Elec. Data Sys., No. 3:04-CV-02291 (N.D. Tex. June 14, 2005), appeal dismissed as frivolous, 191 F. App'x 315 (5th Cir. 2006); Watson v. Bank of Am., No. 3:05-CV-00007 (N.D. Tex. June 14, 2005), appeal dismissed as frivolous, 196 F. App'x 306 (5th Cir. 2006), cert. denied, 549 U.S. 1362 (2007); Watson v. United States, No. 06-CV00716, 2007 WL 5171595 (Fed. Cl. Jan. 26), aff'd, 240 F. App'x 410 (Fed. Cir.), cert. denied, 552 U.S. 868 (2007), reh'g denied, 281 F. App'x 970 (Fed. Cir. 2008); Watson v. United States, 86 Fed. Cl. 399 (Fed. Cl.), aff'd, 349 F. App'x 542 (Fed. Cir. 2009).

1

2

Case: 10-40411

Document: 00511264561

Page: 3

Date Filed: 10/15/2010

No. 10-40411 m a n d a m u s statute] pursuant to 5 U.S.C. § 701 through 5 U.S.C. § 706 [the A d m in is tr a t iv e Procedure Act ("APA")]." T h e district court adopted the magistrate judge's recommendation and d is m is s e d Watson's claims because: (1) the court lacked jurisdiction to review W H D 's and the Board's decisions, or grant relief for claims arising under the I N A relating to the H-1B program; and (2) the doctrine of res judicata barred W a t s o n 's claims because they had been previously dismissed by multiple federal c o u r ts . Watson appeals. I I . ANALYSIS W e review the district court's dismissal for lack of subject matter ju r is d ic t io n de novo. CleanCOALition v. TXU Power, 536 F.3d 469, 473 (5th Cir. 2 0 0 8 ) (citation omitted). "A case is properly dismissed for lack of subject matter ju r is d ic t io n when the court lacks the statutory or constitutional power to a d ju d ic a t e the case." Id. (citation omitted). W a t s o n purports to bring his claims under the APA, 5 U.S.C. § 706; the I N A , 8 U.S.C. § 1182(n); the Declaratory Judgment Act ("DJA"), 28 U.S.C. § 2201; and the federal mandamus statute, 28 U.S.C. § 1361. We agree with the d is t r ic t court--and every other court that has examined Watson's claims--that t h e s e statutes do not provide sufficient grounds for jurisdiction. U n d e r the APA, there is no judicial review of agency action when that " a g e n c y action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The H-1B provisions of the INA instruct the Secretary of Labor (or her designee) t o "conduct an investigation" into complaints that an employer has failed to a b id e by the H-1B provisions regarding the displacement of U.S. workers with H -1 B foreign workers "if there is reasonable cause to believe that such a fa ilu r e . . . has occurred." 8 U.S.C. § 1182(n)(2)(A).2 By the terms of the INA,
A separate provision for complaints to the Attorney General, 8 U.S.C. § 1182(n)(5)(B), which is subject to limited judicial review, id. § 1182(n)(5)(D), is not at issue in this case.
2

3

Case: 10-40411

Document: 00511264561

Page: 4

Date Filed: 10/15/2010

No. 10-40411 t h e r e fo r e , only the Secretary is empowered to make this reasonable-cause a s s e s s m e n t . In other words, WHD's determination that there was no reasonable c a u s e to investigate Watson's allegations, and the Board's affirmance of that d e t e r m in a t io n , are decisions that are committed to the discretion of a federal a g e n c y under the statute and, therefore, are unreviewable. See Heckler v.

C h a n e y , 470 U.S. 821, 832 (1985) ("[A]n agency's decision not to prosecute or e n fo r c e . . . is a decision generally committed to an agency's absolute discretion." (c it a t io n s omitted)); 20 C.F.R. § 655.806(a)(1) (providing that under § 1182(n)(2), " [n ]o hearing or appeal . . . shall be available where the Administrator [of WHD] d e t e r m in e s that an investigation on a complaint is not warranted."). M o r e o v e r , as we have pointed out in our previous opinions regarding W a t s o n 's claims, § 1182(n) does not create a private cause of action on behalf of a n employee who was allegedly fired or not hired in favor of an H-1B foreign w ork er. See Watson, 196 F. App'x at 307­08; Watson, 191 F. App'x at *1;

V e n k a tr a m a n v. REI Sys., Inc., 417 F.3d 418, 422­24 (4th Cir. 2005); Shah v. W ilc o Sys., Inc., 126 F. Supp. 2d 641, 647 (S.D.N.Y. 2000) (all holding that there is no private right of action under § 1182). B e y o n d the text of the INA itself, neither the APA nor the DJA serves as a n independent basis for subject matter jurisdiction. See Watson, 191 F. App'x a t *1 (citing Califano v. Sanders, 430 U.S. 99, 107 (1977) ("We thus conclude that t h e APA does not afford an implied grant of subject-matter jurisdiction p e r m it t in g federal judicial review of agency action.")); Schilling v. Rogers, 363 U .S . 666, 677 (1960) ("[T]he Declaratory Judgment Act is not an independent s o u r c e of federal jurisdiction; the availability of such relief presupposes the e x is t e n c e of a judicially remediable right." (citation omitted)); Budget Prepay, I n c . v. AT&T Corp., 605 F.3d 273, 278 (5th Cir. 2010) ("A declaratory judgment c la im is not jurisdiction-conferring; there must be an independent basis for fe d e r a l jurisdiction." (citation omitted)). 4

Case: 10-40411

Document: 00511264561

Page: 5

Date Filed: 10/15/2010

No. 10-40411 I n addition, the federal mandamus statute, 28 U.S.C. § 1361, does not c o n fe r jurisdiction either. Issuance of a writ of mandamus is an "extraordinary r e m e d y , available only where government officials clearly have failed to perform n o n d is c r e tio n a r y duties." Dunn-McCampbell Royal Interest, Inc. v. Nat'l Park S e r v ., 112 F.3d 1283, 1288 (5th Cir. 1997) (emphasis added) (citations omitted). Here, WHD's decision not to investigate was entirely discretionary under the s t a t u t e , and thus it cannot support any contention by Watson that mandamus s h o u ld issue. See Keelen v. FBI, 78 F. App'x 389, 390 (5th Cir. 2003); Green v. H e c k le r , 742 F.2d 237, 241 (5th Cir. 1984) (both holding that a writ of mandamus w a s not available to force the FBI to investigate a complaint). A c c o r d in g ly , the district court was correct when it ruled that it did not h a v e subject matter jurisdiction over this case.3 A F F IR M E D .

Because we find that there was no subject matter jurisdiction over Watson's claims, we need not decide whether the doctrine of res judicata also bars the claims.

3

5