more on Watson case and "private cause of action"

Date: Thursday, June 14, 2007 7:49 PM

<<<<< JOB DESTRUCTION NEWSLETTER No. 1708 -- 6/14/2007 >>>>>

In my last newsletter I quoted the following statement from the decision made
by a district court concerning Mark Watson's lawsuit against EDS, BofA, and
IBM:

The district court dismissed Mr. Watson's case because 8 U.S.C.
' 1182(n) does not create a private cause of action on behalf
of an employee allegedly terminated in favor of an H-1B
nonimmigrant employee even if that status was obtained by the
means of a fraudulent application.

The matter of a "private cause of action" is far more important than you might
think. Without this, Americans have very limited rights to sue employers for
being displaced by H-1Bs. That is the primary reason the judges were able to
dismiss Watson's case.

This wiki definition is very important to understand. H-1B lacks a statutory
"cause of action". Go to the Wiki page to understand the difference between
statutory and Constitutional causes of action.

http://en.wikipedia.org/wiki/Cause_of_action
"A "Cause of action" encompasses both the legal theory of what legal wrong the
plaintiff claims to have suffered, and the remedy, which is the relief a court
is asked to grant."

I received three comments to the last newsletter which are duplicated below.
They describe the problem better than I could, and they explain why it's so
tough for individual citizens to do something about H-1B through our legal
system.

Later today I will publish another newsletter with more information about this
issue.

+++++++++++++++++++++++++++++++++++++++++++++++++++

Rob,

I briefly skimmed the documents in the Watson case. While I don't know that
much about immigration law, I do know a little about administrative law and
the problems that led to the decisions by the courts.

The problem that has plagued the country since the Republicans took over in
the 1990s is that they sold a fraudulent bill of goods to the American people
when they started falsely claiming there was some type of litigation crisis.
This was a scare tactic created issue by the Chamber of Commerce and other big
businesses to try and eliminate any responsibility or accountability for just
about anything. The Democrats never fought back or argued so that they
American people could understand the whole situation.
No, Democrats are too busy cowering and running for cover to ever stop and
fight for individual American citizens' rights. Of course they too are sick
with that Corporate money addiction.

Over the past twenty years, the litigation crisis hammer was wielded over
every piece of legislation relating to our citizens and it eventually evolved
into Congress and now many state governments creating administrative
nightmares for accommodating complaints for any variety of things. Most laws
that have been touted as "protecting consumers" have had all private rights of
action permanently removed. For example, most of the privacy laws that have
passed Congress and many state laws provide no private right of action in a
court of law. The aggrieved party must submit a complaint to the
administrative body in charge and hope they will investigate. If they won't
you're screwed, end of story. If they do investigate, the government just
tells the violator to stop doing it, or comes up with a very token punishment.

One of the biggest problems with removing private rights of action is that the
taxpayers end up subsidizing a completely ineffective administrative body that
usually panders to business. Now businesses don't have to be accountable or
spend money on litigation because the government takes care of not only their
litigation expenses, but their consequences.

In reality, private litigation is the most effective regulatory mechanisms in
the world. Yes, like anything, there are those that will abuse it, but it is
still the most cost effective and efficient way of ensuring a civil society.
The same with punitive damages, we have to have severe consequences for people
and companies that refuse to act according to the
law. Punitive damages provide a serious incentive for them to comply.

The Watson's case illustrates another problem with no private right of action.
There can be no formal discovery (access to evidence) by which the aggrieved
party can flush out the case and come up with all the needed facts and
documentation to complete the case against a violator or the injuring party.
Without discovery, a case will lack all the proof needed for a resolution or
prosecution.

A good example of a nonsensical administrative law is the National Labor
Relations Act. The board may investigate, but there is no real consequence
for any violations, they basically tell them to stop doing it. So like the
immigration issue, big business openly discusses has seminars on how to
violate the law without consequence.

In the Watson case, he is beyond any ability to salvage the specific case.
He should find an attorney, which admittedly is very hard, he may have to look
for a very long time. But if he keeps looking he will find one that will
bring a case on other more creative grounds. Believe me it can be
done.

This case does illustrate the absurdity of the existing laws and should be
more heavily disseminated. I will see what I can do.

In the mean time, it is quite evident that American citizens are no longer
represented at any level within the existing two party system. Maybe it is
time that we all band together and start the American Citizen Party for the
purposes of getting representations for American citizens. Maybe that is what
American citizens should concentrate their efforts on instead of looking for a
Democrat or Republican to protect us.

Your work is very important and appreciated, don't give up.

Kim Millman

+++++++++++++++++++++++++++++++++++++++++++++++++++

It is akin to the court's construction of the rules on Standing. We often find
our cases swept aside on the theory that we are only indirectly harmed, and
therefore have no legal standing to bring the case. In theory, there is some
logical appeal to that. If, for example, you are opposed to the way the govt
is spending your tax dollars in Iraq, you simply don't have "standing" to sue
the IRS for a rebate. The courts would be deluged with these cases.
Accordingly, "standing" allows for the convenient administration of justice in
some cases.

The rationale breaks down when Watson and the charitable groups are barred.
It makes sense that the judges would bar the disgruntled taxpayer from
accessing the courts with a complaint over how their tax dollars are being
spent. Understandably, the pain perceived by each individual taxpayer is
essentially the same as every other taxpayer and thus no one has standing.
Those grievances can be entertained in the legislature anyway.

A retired lawyer

+++++++++++++++++++++++++++++++++++++++++++++++++++

I believe there are viable ways to establish causes of action the federal
courts must recognize. That is what IRLI does. When adults play doctor, the
result is malpractice, no matter how worthy the cause.

Immigration attorney

[Note from Rob -- this attorney was referring to the Immigration Reform Law
Institute (IRLI) at www.irli.org]

- - - - - - - - - - - - - - - - - - - - - - - - - - - - Newsletter Homepage:
http://www.JobDestruction.com/shameh1b/JobDestructionNews.htm

Support this Newsletter and www.JobDestruction.com by donating:
www.zazona.com/Donations.htm

To Be removed from this mailing list, reply to this email with UNSUbSCRIBE in
the subject window

Back to archives