     Case: 10-40411     Document: 00511264561          Page: 1    Date Filed: 10/15/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          October 15, 2010

                                     No. 10-40411                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



MARK J. WATSON,

                                                   Plaintiff–Appellant
v.

CHIEF ADMINISTRATIVE LAW JUDGE; UNITED STATES
DEPARTMENT OF LABOR; BANK OF AMERICA; ELECTRONIC DATA
SYSTEMS CORPORATION; IBM CORPORATION; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY; UNITED STATES
DEPARTMENT OF STATE,

                                                   Defendants–Appellees




                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:09-CV-310


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Mark J. Watson, pro se, appeals the district court’s dismissal of his case
for 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 10-40411       Document: 00511264561           Page: 2     Date Filed: 10/15/2010

                                        No. 10-40411

                  I. FACTUAL AND PROCEDURAL HISTORY
       In 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.
(“EDS”), his former employer, terminated his employment and hired an H1-B
foreign worker in his place in violation of the Immigration and Nationality Act
(“INA”). See 8 U.S.C. § 1182(n). Watson also filed complaints against Bank of
America, N.A. (“BOA”) and IBM Corp. (“IBM”), alleging that they had unlawfully
hired H-1B foreign workers to fill positions for which he had applied.
       WHD declined to investigate Watson’s complaints because there was “no
reasonable cause” to believe that a violation of the INA had occurred. Watson
requested hearings for each complaint, but various Administrative Law Judges
granted summary judgment to EDS, BOA, and IBM. Watson then appealed each
of these adverse decisions to the Department of Labor’s Administrative Review
Board (the “Board”). The Board affirmed the EDS and BOA decisions on May
31, 2005, and declined to review the IBM decision on October 20, 2006.
       On June 22, 2009, Watson filed this lawsuit in the Eastern District of
Texas, claiming that EDS, BOA, and IBM had violated the INA and that various
federal agencies, including the Department of Labor, had wrongfully failed to
investigate 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
district court under the jurisdictional authority of 28 U.S.C. § 1361 [the federal


       1
         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-CV-
00716, 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).

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                                       No. 10-40411

mandamus statute] pursuant to 5 U.S.C. § 701 through 5 U.S.C. § 706 [the
Administrative Procedure Act (“APA”)].”
       The district court adopted the magistrate judge’s recommendation and
dismissed Watson’s claims because: (1) the court lacked jurisdiction to review
WHD’s and the Board’s decisions, or grant relief for claims arising under the
INA relating to the H-1B program; and (2) the doctrine of res judicata barred
Watson’s claims because they had been previously dismissed by multiple federal
courts. Watson appeals.
                                      II. ANALYSIS
       We review the district court’s dismissal for lack of subject matter
jurisdiction de novo. CleanCOALition v. TXU Power, 536 F.3d 469, 473 (5th Cir.
2008) (citation omitted). “A case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or constitutional power to
adjudicate the case.” Id. (citation omitted).
       Watson purports to bring his claims under the APA, 5 U.S.C. § 706; the
INA, 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
district court—and every other court that has examined Watson’s claims—that
these statutes do not provide sufficient grounds for jurisdiction.
       Under the APA, there is no judicial review of agency action when that
“agency 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)
to “conduct an investigation” into complaints that an employer has failed to
abide by the H-1B provisions regarding the displacement of U.S. workers with
H-1B foreign workers “if there is reasonable cause to believe that such a
failure . . . has occurred.” 8 U.S.C. § 1182(n)(2)(A).2 By the terms of the INA,

       2
        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.

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therefore, only the Secretary is empowered to make this reasonable-cause
assessment. In other words, WHD’s determination that there was no reasonable
cause to investigate Watson’s allegations, and the Board’s affirmance of that
determination, are decisions that are committed to the discretion of a federal
agency under the statute and, therefore, are unreviewable.          See Heckler v.
Chaney, 470 U.S. 821, 832 (1985) (“[A]n agency’s decision not to prosecute or
enforce . . . is a decision generally committed to an agency’s absolute discretion.”
(citations 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]
determines that an investigation on a complaint is not warranted.”).
      Moreover, as we have pointed out in our previous opinions regarding
Watson’s claims, § 1182(n) does not create a private cause of action on behalf of
an employee who was allegedly fired or not hired in favor of an H-1B foreign
worker.   See Watson, 196 F. App’x at 307–08; Watson, 191 F. App’x at *1;
Venkatraman v. REI Sys., Inc., 417 F.3d 418, 422–24 (4th Cir. 2005); Shah v.
Wilco 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).
      Beyond the text of the INA itself, neither the APA nor the DJA serves as
an independent basis for subject matter jurisdiction. See Watson, 191 F. App’x
at *1 (citing Califano v. Sanders, 430 U.S. 99, 107 (1977) (“We thus conclude that
the APA does not afford an implied grant of subject-matter jurisdiction
permitting federal judicial review of agency action.”)); Schilling v. Rogers, 363
U.S. 666, 677 (1960) (“[T]he Declaratory Judgment Act is not an independent
source of federal jurisdiction; the availability of such relief presupposes the
existence of a judicially remediable right.” (citation omitted)); Budget Prepay,
Inc. v. AT&T Corp., 605 F.3d 273, 278 (5th Cir. 2010) (“A declaratory judgment
claim is not jurisdiction-conferring; there must be an independent basis for
federal jurisdiction.” (citation omitted)).

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      In addition, the federal mandamus statute, 28 U.S.C. § 1361, does not
confer jurisdiction either. Issuance of a writ of mandamus is an “extraordinary
remedy, available only where government officials clearly have failed to perform
nondiscretionary duties.” Dunn-McCampbell Royal Interest, Inc. v. Nat’l Park
Serv., 112 F.3d 1283, 1288 (5th Cir. 1997) (emphasis added) (citations omitted).
Here, WHD’s decision not to investigate was entirely discretionary under the
statute, and thus it cannot support any contention by Watson that mandamus
should issue. See Keelen v. FBI, 78 F. App’x 389, 390 (5th Cir. 2003); Green v.
Heckler, 742 F.2d 237, 241 (5th Cir. 1984) (both holding that a writ of mandamus
was not available to force the FBI to investigate a complaint).
      Accordingly, the district court was correct when it ruled that it did not
have subject matter jurisdiction over this case.3
      AFFIRMED.




      3
       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.

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