Watson v. Bank of America

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-10797
Summary Calendar
MARK J. WATSON,
Plaintiff-Appellant,
versus
BANK OF AMERICA; EMPLOYMENT AND TRAINING ADMINISTRATION;
ESA WAGE AND HOUR DIVISION; U.S. CITIZENSHIP AND IMMIGRATION
SERVICE; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; BUREAU OF
CONSULAR AFFAIRS,
Defendants-Appellees.
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No. 05-10798
Summary Calendar
MARK. J. WATSON,
Plaintiff-Appellant,
versus
ELECTRONIC DATA SYSTEMS; EMPLOYMENT AND TRAINING ADMINISTRATION;
ESA WAGE AND HOUR DIVISION; U.S. CITIZENSHIP AND IMMIGRATION
SERVICE; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; BUREAU OF
CONSULAR AFFAIRS,
Defendants-Appellees.
No. 05-10797 c/w
No. 05-10798
-2-
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Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CV-7
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Mark J. Watson, a Tennessee resident, has filed a motion 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). In the judgment that
Watson has appealed in No. 05-10797, the district court dismissed
his civil action as frivolous and for failure to state a claim,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). Watson’s
action was 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 a prospective employer, Bank of America (BOA), rejected his
job application, having conspired 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.
*
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this opinion should not be published and is not precedent except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.
**
See 8 U.S.C. § 1101(a)(15)(H)(i)(b).
No. 05-10797 c/w
No. 05-10798
-3-
The district court correctly concluded that Watson failed to
state a claim upon which relief can be granted because he had no
private right of action under 8 U.S.C. § 1182(n)(5), which
reserves to the Attorney General the authority to raise such
claims as Watson’s in the court of appeals. See Venkatraman v.
REI Systems, Inc., 417 F.3d 418, 422-24 (4th Cir. 2005); Biran v.
JP Morgan Chase & Co., No. 02 CIV. 5506(HHS) (S.D.N.Y. Sept. 12,
2002), 2002 WL 31040345 at **2-3; 8 U.S.C. § 1182(n)(5)(B)-(D).
Watson is challenging a different district-court judgment in
No. 05-10798, a case in which he argued that his former employer,
Electronic Data Systems, terminated him improperly in favor of
H-1B nonimmigrant visa workers. Insofar as he is challenging
this judgment, he had no private right of action in the first
instance under 8 U.S.C. § 1182(n), the subsection governing the
H-1B program and providing procedures for enforcing its
requirements. See Louisiana Landmarks Soc’y, Inc. v. City of New
Orleans, 85 F.3d 1119, 1121, 1125 (5th Cir. 1996); Shah v. Wilco
Systems, Inc., 126 F. Supp. 2d 641, 647-48 (S.D. N.Y. 2000).
It is ordered that leave to proceed IFP is denied and that
the appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202
& n.24; 5TH CIR. R. 42.2.
Watson’s motion for production of transcripts at Government
expense, his motion to strike pleadings, his motion to expedite
the appeal, and his request for judicial notice are also denied.
No. 05-10797 c/w
No. 05-10798
-4-
IFP MOTION DENIED; MOTION FOR PRODUCTION OF TRANSCRIPTS
DENIED; MOTION TO STRIKE DENIED; MOTION TO EXPEDITE DENIED;
REQUEST FOR JUDICIAL NOTICE DENIED; APPEAL DISMISSED AS
FRIVOLOUS.