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Watson v. Electronic Data Systems , 191 F. App'x 315 ( 2006 )


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  •                                                               United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                         July 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-10927
Summary Calendar
MARK J. WATSON,
Plaintiff-Appellant,
versus
ELECTRONIC DATA SYSTEMS; EMPLOYMENT AND TRAINING ADMINISTRATION;
ESA WAGE AND HOUR DIVISION; UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICE; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;
BUREAU OF CONSULAR AFFAIRS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
No. 3:04-CV-2291
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Mark Watson has moved to proceed in forma pauperis (“IFP”) on
appeal, effectively challenging the district court’s certification
that his appeal is not taken in good faith.          See Baugh v. Taylor,
    117 F.3d 197
    , 199-202 (5th Cir. 1997);
    28 U.S.C. § 1915
    (a).                 The
*
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opinion should not be published and is not precedent except under the limited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.
No. 05-10927
-2-
district court granted the defendants’ FED. R. CIV. P. 12(b)(1)
and (6) motions to dismiss Watson’s civil “Petition for Review,”
purportedly filed pursuant to the Immigration and Nationality Act
(INA),
    8 U.S.C. § 1182
    (n), and the Administrative Procedure Act
(APA),
    5 U.S.C. § 701
     et seq.       Watson had alleged that his former
employer, Electronic Data Systems, terminated him after conspiring
with federal agencies to hire more “H-1B” nonimmigrant workers, and
he sought declaratory relief stating that the H-1B program was
“unlawful” and an injunction revoking all H-1B labor certifications
and removing such workers from the country.
We review de novo the granting of a motion to dismiss under
rule 12(b)(1) or (6).    Musslewhite v. State Bar of Texas,
    32 F.3d 942
    , 945 (5th Cir. 1994); Gen. Elec. Capital Corp. v. Posey,
    415 F.3d 391
    , 395 (5th Cir. 2005).      To the extent that Watson relied on
the APA as basis for subject-matter jurisdiction, such reliance was
unavailing, because the APA does not confer such jurisdiction; the
plaintiff   must   establish   an   independent   jurisdictional   basis.
See Califano v. Sanders,
    430 U.S. 99
    , 105-07 (1977).       In any event,
Watson failed to state a claim on which relief can be granted
because, as the district court concluded, he had no private right
of action in the first instance under § 1182(n), the subsection
governing the H-1B program and providing procedures for enforcing
its requirements.     See La. Landmarks Soc’y, Inc. v. City of New
Orleans,
    85 F.3d 1119
    , 1121, 1125 (5th Cir. 1996); Shah v. Wilco
Sys., Inc.,
    126 F. Supp. 2d 641
    , 647-48 (S.D.N.Y. 2000).
No. 05-10927
-3-
It is ordered that leave to proceed IFP is denied, and the ap-
peal is dismissed as frivolous.   See Baugh,
    117 F.3d at 
    202 & n.24;
5TH CIR. R. 42.2.
IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS.