Tovar v. U.S. Postal Service

• Decision Date: 31 August 1993
• Docket Number: No. 91-70027,91-70027
• Citation: 3 F.3d 1271
• Parties: 62 Fair Empl.Prac.Cas. 1414, 62 Empl. Prac. Dec. P 42,534 Olimpia TOVAR, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1271

3 F.3d 1271

62 Fair Empl.Prac.Cas. 1414,

62 Empl. Prac. Dec. P 42,534

Olimpia TOVAR, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.

No. 91-70027.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 12, 1992.

Decided Aug. 31, 1993.

Stephanie Garrabrant, Brobeck, Phleger & Harrison, San Francisco, CA, for petitioner.

Matthew M. Collette, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition for Review of a Decision of the Executive Office for Immigration Review.

Before: REINHARDT, NOONAN, and THOMPSON, Circuit Judges.

REINHARDT, Circuit Judge:

There are two issues before us: whether a United States Postal Service ("Postal Service") regulation that prohibits the employment of temporary resident aliens violates the unlawful discrimination provision of the Immigration Reform and Control Act of 1986 ("IRCA"), and whether the Postal Service exceeded its authority under the Postal Reorganization Act of 1970 ("Act") in promulgating the regulation. The administrative law judge ("ALJ") from the Executive Office for Immigration Review at the Department of Justice granted summary judgment for the Postal Service, holding that its refusal to hire Olimpia Tovar, a temporary resident alien, did not constitute unlawful discrimination because the regulation fell within a statutory exemption to the anti-discrimination provision of IRCA; he also held that the Postal Service did not exceed its grant of authority under the Act in promulgating the regulation. Tovar disputes both aspects of the ruling, and also challenges the regulation on fifth amendment due process and equal protection grounds. (Tovar raised the constitutional issues before the ALJ, who declined to decide them because they concerned a regulation not issued by his own agency.) We agree with the ALJ's holding that the regulation falls within a statutory exemption of IRCA. We reverse the ALJ's grant of summary judgment, however, for further proceedings with respect to the question whether the Postal Service exceeded its authority under the Postal Reorganization Act of 1970. Because we decide the case on statutory grounds, we do not reach Tovar's constitutional claims. ¹

I

Olimpia Tovar entered the United States unlawfully at some time prior to 1982. She obtained a temporary resident card on March 24, 1988, under the amnesty provision of the Immigration Relief and Control Act of 1986 ("IRCA"), Pub.L. 99-603, Title II, Sec. 201(a), 100 Stat. 3394 (1986) (codified as amended at 8 U.S.C. Sec. 1255a(a) (1988)). In January, 1989, Tovar applied for employment with the United States Postal Service ("Postal Service") and took an examination. On April 27, 1989, she filed a declaration of intent to become a United States citizen--a precondition under IRCA for eventual adjustment to permanent resident alien status. 8 U.S.C. Sec. 1255a(b)(1)(D). On April 28, 1989, Tovar received notice from the Postal Service of her eligibility for the position of flat sorting machine operator. During her orientation for the new position, however, the Postal Service informed Tovar that she was not eligible for employment because she had not yet achieved permanent resident alien status. Under Postal Regulation 312.21, only those non-citizens who have been granted permanent resident alien status are eligible for employment with the Postal Service. It is the validity of that regulation that is at issue here.

As authorized by IRCA, Tovar filed a complaint of unfair immigration-related employment practices against the Postal Service in the Office of the Chief Administrative Hearing Officer ("OCAHO"). 8 U.S.C. Sec. 1324b(d)(2). She alleged that Regulation 312.21 violated the anti-discrimination provision of IRCA, which provides:

It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual ... with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment--

. . . . .

(B) in the case of a protected individual (as defined in paragraph (3)), because of such individual's citizenship status.

Id. Sec. 1324b(a)(1). It is undisputed that Tovar, an alien lawfully admitted for temporary residence pursuant to Sec. 1255a(a), is a "protected individual" under IRCA. Id. Sec. 1324b(a)(3).

Believing that no factual issues relating to Tovar's claim were in dispute, the parties filed cross-motions for summary judgment. Tovar charged that Regulation 312.21 constituted unlawful discrimination under Sec. 1324b(a)(1) and exceeded the authority of the Postal Service as defined in the Postal Reorganization Act of 1970, Pub.L. 91-375, 84 Stat. 719 (codified as amended at 39 U.S.C. Sec. 101 et seq.). ² The Postal Service argued, in response, that the regulation fell within a statutory exemption to Sec. 1324b(a)(1), which reads as follows:

Paragraph (1) shall not apply to--

....

(C) discrimination because of citizenship status which is otherwise required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract, or which the Attorney General determines to be essential for an employer to do business with an agency or department of the Federal, State, or local government.

8 U.S.C. Sec. 1324b(a)(2) (emphasis added). It further maintained that the regulation was a valid exercise of its authority to promulgate policies and regulations regarding eligibility for employment.

The administrative law judge ("ALJ") concluded that Regulation 312.21 fell within the exemption provided in Sec. 1324b(a)(2)(C) and that in adopting it the Postal Service did not exceed its statutory authority. Accordingly, the ALJ granted the motion of the Postal Service for summary judgment and dismissed Tovar's complaint. As authorized by 8 U.S.C. Sec. 1324b(i), Tovar appealed the ALJ's decision to this court. On appeal, she emphasizes that she challenges the Postal Service's regulation only as it applies to temporary residents under IRCA. ³ We note that the class of temporary residents is self-exhausting, and that the time for filing any complaint regarding employment discrimination while in such status has already run. ⁴

Since the ALJ issued his decision, Tovar has been accorded permanent resident alien status. However, because she seeks back pay for the period of time during which she was considered ineligible for employment with the Postal Service, this case is not moot.

II

Tovar contends, first, that the ALJ erred in concluding that employment decisions made under Regulation 312.21 are exempt from the anti-discrimination provision of IRCA. The plain language of the statutory exemption invoked by the Postal Service defeats her argument. Moreover, the legislative history of IRCA indicates that the anti-discrimination provision was designed primarily to prevent discrimination on the basis of alienage by private employers, rather than by the federal government.

In Sec. 1324b(a)(2)(C) of IRCA, quoted above, Congress expressly exempted employment discrimination that is mandated by federal law from the reach of the statutory anti-discrimination provision. The language of the exemption could hardly be clearer. Section 1324b(a)(1) does not apply to "discrimination because of citizenship status which is otherwise required in order to comply with ... regulation." The refusal of the Postal Service to hire Tovar was based on its regulation, which provides that only citizens and permanent resident aliens are eligible for such employment. Accordingly, its refusal could not, as a matter of law, violate Sec. 1324b(a)(1).

Tovar argues that treating the Postal Service regulation as exempt under Sec. 1324b(a)(2)(C) would contravene congressional intent as expressed in the overall statutory scheme of IRCA and in the legislative history of the statute. Ordinarily, where a statute is clear on its face and "no further interpretive assistance is required.... it is proper to look only to the statute's plain language." Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1453 (9th Cir.1992). However, where the language of the statute is uncertain or ambiguous, id. or "where a literal interpretation would thwart the purpose of the over-all statutory scheme or lead to an absurd result," Wilshire Westwood Assoc. v. Atlantic Richfield Corp., 881 F.2d 801, 804 (9th Cir.1989) (internal quotation omitted; citation omitted), it may be proper to consider the statute in light of the relevant legislative history. Mt. Graham Red Squirrel, 954 F.2d at 1453. We find nothing contrary to an express or implied congressional intent in the interpretation mandated by the plain words of the statute; nor is the result "absurd."

The language of the statutory exemptions to Sec. 1324b(a)(1) demonstrates that Congress intended to allow public employers wide latitude with respect to the anti-discrimination provision of IRCA--latitude that Congress did not extend to private employers. Section 1324b(a)(2)(A), the private sector exemption, excuses only "person[s] or other entit[ies] that employ[ ] three or fewer employees" from the requirements of Sec. 1324b(a)(1). By contrast, Sec. 1324b(a)(2)(C) releases from the constraints of Sec. 1324b(a)(1) all federal, state, and local government employers who have adopted a regulation that mandates discrimination based on alienage. (The remaining statutory exemption, Sec. 1324b(2)(B), which exempts discrimination on the basis of national origin that is exempt under Title VII of the Civil Rights Act, 42 U.S.C. Sec. 2000e-2, functions purely as a conforming provision.) The effect of Sec. 1324b(a)(2)(A) and Sec. 1324b(a)(2)(C) is to apply the anti-discrimination provision of IRCA rigidly to all private employers virtually without exception, but to apply it only to those public employers who have not adopted contravening regulations. We conclude that in enacting these sections, Congress...