594 F.3d 742 (10th Cir. 2010), 08-6127, Chamber of Commerce of United States v. Edmondson

Docket Nº:08-6127, 08-6128.
Citation:594 F.3d 742
Opinion Judge:LUCERO, Circuit Judge.
Party Name:CHAMBER OF COMMERCE OF the UNITED STATES of America; Oklahoma State Chamber of Commerce and Associated Industries; Metropolitan Tulsa Chamber of Commerce, Inc.; Greater Oklahoma City Chamber of Commerce, Inc.; Oklahoma Restaurant Association; Oklahoma Hotel and Lodging Association, Plaintiffs-Appellees, v. W.A. Drew EDMONDSON, in his official capac
Attorney:M. Daniel Weitman, Assistant Attorney General (Kevin L. McClure, Assistant Attorney General, and Sandra D. Rinehart, Senior Attorney General, with him on the briefs), Oklahoma Attorney General's Office, Oklahoma City, OK, for Defendants-Appellants Edmondson and Human Rights Commissioners. Guy L. ...
Judge Panel:Before KELLY, LUCERO, and HARTZ, Circuit Judges. KELLY, Circuit Judge, concurring in part. HARTZ, Circuit Judge, concurring and dissenting:
Case Date:February 02, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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594 F.3d 742 (10th Cir. 2010)

CHAMBER OF COMMERCE OF the UNITED STATES of America; Oklahoma State Chamber of Commerce and Associated Industries; Metropolitan Tulsa Chamber of Commerce, Inc.; Greater Oklahoma City Chamber of Commerce, Inc.; Oklahoma Restaurant Association; Oklahoma Hotel and Lodging Association, Plaintiffs-Appellees,

v.

W.A. Drew EDMONDSON, in his official capacity as Attorney General for the state of Oklahoma; Keith McArtor, Stan Evans, Mark Ashton, Ann Cong-Tang, Elvia Hernandez, Rita Maxwell, Teresa Rendon, Sammie Vasquez, Sr., and Juanita Williams, in their official capacities as members of the Oklahoma Human Rights Commission, Defendants-Appellants,

and

Thomas E. Kemp, Jr., Jerry Johnson, and Constance Irby, in their official capacities as members of the Oklahoma Tax Commission, Defendants-Appellants.

American Civil Liberties Union; National Immigration Law Center; Change to Win; Arizona Chamber of Commerce and Industry; Colorado Association of Commerce and Industry; Illinois Chamber of Commerce; Indiana Chamber of Commerce; Kansas Chamber of Commerce; Kentucky Chamber of Commerce; Missouri Chamber of Commerce and Industry; New Jersey Chamber of Commerce; Pennsylvania Chamber of Business and Industry; Tennessee Chamber of Commerce and Industry; Texas Association of Business; Association of Washington Business; West Virginia Chamber of Commerce; Lawyers' Committee for Civil Rights of the San Francisco Bay Area; Asian American Legal Defense Education Fund; Asian Pacific American Legal Center; Centro Legal, Inc.; Immigration Equality; La Raza Centro Legal; Legal Aid Society-Employment Law Center; National Center for Lesbian Rights; Southern Poverty Law Center; Women's Employment Rights Clinic; Human Resource Initiative for a Legal Workforce; Associated Builders and Contractors, Inc., Amici Curiae.

Nos. 08-6127, 08-6128.

United States Court of Appeals, Tenth Circuit.

February 2, 2010

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M. Daniel Weitman, Assistant Attorney General (Kevin L. McClure, Assistant Attorney General, and Sandra D. Rinehart, Senior Attorney General, with him on the briefs), Oklahoma Attorney General's Office, Oklahoma City, OK, for Defendants-Appellants Edmondson and Human Rights Commissioners.

Guy L. Hurst, Assistant General Counsel, Oklahoma Tax Commission, Oklahoma City, OK, for Defendants-Appellants Tax Commissioners.

Carter G. Phillips (Eric A. Shumsky, Robert A. Parker, and Brian E. Nelson; and Robin S. Conrad and Shane Brennan, National Chamber Litigation Center, Inc., with him on the briefs), Sidley Austin LLP, Washington, DC, for Plaintiffs-Appellees.

David A. Selden and Julie A. Pace, Ballard Spahr Andrews & Ingersoll, LLP, Phoenix, AZ, and Burt M. Rublin, Ballard Spahr Andrews & Ingersoll, LLP, Philadelphia, PA, filed an Amici Curiae brief for The Human Resource Initiative For a Legal Workforce and Associated Builders and Contractors, Inc.

Patrick J. Szymanski, General Counsel, Change to Win, and John M. West, Bredhoff & Kaiser, P.L.L.C., Washington, D.C., filed an Amicus Curiae brief for Change to Win, in support of Appellees.

Lucas Guttentag and Jennifer Chang Newell, America Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, CA, Omar Jadwat, American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, NY, Andrew Tauber, Mayer Brown LLP, Washington, DC, and Linton Joaquin, Karen C. Tumlin, and Nora A. Preciado, National Immigration Law Center, Los Angeles, CA, filed an Amici Curiae brief for American Civil Liberties Union and National Immigration Law Center, in support of Appellees.

Walter Dellinger, Sri Srinivasan, and Justin Florence, O'Melveny & Myers LLP, Washington, DC, filed an Amici Curiae brief for The Arizona Chamber of Commerce and Industry, The Colorado Association of Commerce and Industry, The Illinois Chamber of Commerce, The Indiana Chamber of Commerce, The Kansas Chamber of Commerce, The Kentucky Chamber of Commerce, The Missouri Chamber of Commerce and Industry, The New Jersey Chamber of Commerce, The Pennsylvania Chamber of Business and Industry, The Tennessee Chamber of Commerce and Industry, The Texas Association of Business, The Association of Washington Business, and the West Virginia Chamber of Commerce, in support of Appellees.

Kevin M. Fong and Brian J. Wong, Pillsbury Winthrop Shaw Pittman LLP, and Robert Rubin and Nira Geevargis, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, San Francisco, CA, filed an Amici Curiae brief for Lawyers' Committee for Civil Rights of the San Francisco Bay Area, et al., in support of Appellees.

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Before KELLY, LUCERO, and HARTZ, Circuit Judges.

LUCERO, Circuit Judge.

The Oklahoma Taxpayer and Citizen Protection Act of 2007 (the " Act" or the " Oklahoma Act" ) is one of a multitude of recent state enactments that regulate illegal immigration and verification of employment eligibility. This case implicates three provisions of the Act. Section 7(B) forces businesses to utilize the Basic Pilot Program to verify the work authorization status of their employees on pain of debarment from contracting with Oklahoma public employers. Section 7(C) makes it a discriminatory practice for an employer to terminate an authorized worker while retaining an employee that the employer knows or reasonably should know is unauthorized to work. Section 9 requires contracting entities either to verify the work eligibility of their individual independent contractors or withhold certain taxes from those contractors. Otherwise, the contracting entity is liable to the State for the money not withheld.

Plaintiffs, various chambers of commerce and trade associations (" plaintiffs" or the " Chambers" ), challenged Sections 7(B), 7(C), and 9 of the Act. They claimed that all three sections were expressly and impliedly preempted by federal law and moved for a preliminary injunction to bar Oklahoma's Governor, Attorney General, Human Rights Commission, and Tax Commission (collectively " defendants" or " Oklahoma" ) from enforcing the challenged provisions. Defendants opposed a preliminary injunction and moved to dismiss. Oklahoma argued that the Chambers lacked standing, that certain defendants were immune from suit under the Eleventh Amendment, and that the Tax Injunction Act, 28 U.S.C. § 1341, deprived the district court of jurisdiction to enjoin Section 9. The district court denied the motions to dismiss and granted the preliminary injunction. All defendants, save the Governor, appeal.

Faced with the same issues that were before the district court, we conclude: (1) the Chambers have standing; (2) that the Eleventh Amendment precludes the case only insofar as the Attorney General is named as a defendant in the challenge to Sections 7(C) and 9; and (3) the district court properly exercised jurisdiction over the Chambers' challenge to Section 9. We further hold that the Chambers are likely to succeed on the merits of their claims that Section 7(C) is expressly preempted and that Section 9 is impliedly preempted. Moreover, the remaining considerations favor issuance of a preliminary injunction.

Although their reasoning differs, my colleagues conclude the district court erred in its determination that Section 7(B) is preempted, and thus the panel reverses the district court's grant of a preliminary injunction against the enforcement of Section 7(B). I dissent from the judgment of the court on this issue and would hold that Section 7(B) is impliedly preempted and that the issuance of a preliminary injunction was appropriate. Accordingly, this opinion is that of the court except with respect to sections V.B.2 and V.B.4.

We have jurisdiction under the collateral order doctrine to consider the district court's denial of Eleventh Amendment immunity, P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993), and under 28 U.S.C. § 1292(a)(1) to review the grant of a preliminary injunction. The panel dismisses in part, reverses in part, and affirms in part.

I

This case requires us to consider the interplay between the federal employment

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verification regime and that of the Oklahoma Act. We begin by outlining these potentially-conflicting systems.

A

Enacted in 1986, the Immigration Reform and Control Act (" IRCA" ) created " a comprehensive scheme prohibiting the employment of illegal aliens in the United States." Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002). Section 101(a)(1) of IRCA makes it " unlawful for a person or other entity ... to hire ... for employment in the United States an alien knowing the alien is an unauthorized alien." 8 U.S.C. § 1324a(a)(1), (a)(1)(A). An " unauthorized alien" is defined as an " alien [who] is not at that time either (A) ... lawfully admitted for permanent residence, or (B) authorized to be so employed by [IRCA] or by the Attorney General." § 1324a(h)(3).

Federal law exhaustively details a specialized administrative scheme for determining whether an employer has knowingly employed an unauthorized alien. 1§ 1324a(e). An employer that does so is subject to a range of civil and criminal penalties, including fines, § 1324a(e)(4), cease and desist orders, id., and imprisonment, § 1324a(f)(1). Consistent with its comprehensive nature, IRCA includes an express preemption provision: " The provisions of this section preempt any State or local law imposing civil or...

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