Enforcement Jurisdiction of the Special Counsel for Immigration Related Unfair Employment Practices
| Decision Date | 17 August 1992 |
| Docket Number | 92-12 |
| Citation | 16 Op. O.L.C. 121 |
| Parties | Enforcement Jurisdiction of the Special Counsel for Immigration Related Unfair Employment Practices |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
JOHN C. HARRISON, Deputy Assistant Attorney General Office of Legal Counsel
Enforcement Jurisdiction of the Special Counsel for Immigration Related Unfair Employment Practices
Federal agencies are not included in the phrase "person or other entity" in the antidiscrimination provision of the Immigration Reform and Control Act, 8 U.S.C. § 1324b(a)(1). Accordingly, the Special Counsel for Immigration Related Unfair Employment Practices is without authority to bring discrimination charges against federal agencies.
This memorandum responds to your request that we reconsider our opinion of May 2, 1990, in which we concluded that the Antidiscrimination Provision of the Immigration Reform and Control Act, 8 U.S.C. § 1324b(a)(1), authorizes the Special Counsel for Immigration Related Unfair Employment Practices to investigate and prosecute charges of employment discrimination by federal agencies. After evaluating your request for reconsideration and the response of the Special Counsel, we conclude that the federal government is not a "person or other entity" covered by the Antidiscrimination Provision. We withdraw our earlier opinion.[1]
The Antidiscrimination Provision of the Immigration Reform and Control Act ("IRCA") provides that:
8 U.S.C. § 1324b(a)(1) (emphasis added). Under IRCA's enforcement provisions, the Special Counsel for Immigration Related Unfair Employment Practices ("Special Counsel") may file charges against any "person or other entity" for violation of the Antidiscrimination Provision. Such charges initially come before an administrative law judge ("ALJ") within the Department of Justice. Id. § 1324b(d)(1). In the event that the Special Counsel does not file charges with the ALJ within a specified time, the private claimant may do so directly. Id. § 1324b(d)(2).
If the ALJ finds that the defendant "person or other entity" has violated the Antidiscrimination Provision the ALJ may order injunctive relief, back pay, and civil penalties. Id. § 1324b(g)(2)(B)(iii)-(iv). Any "person aggrieved" by the ALJ's order may seek review in the appropriate court of appeals, id. § 1324b(i)(1), and the district court may enforce the ALJ's order on petition by the Special Counsel or by the private claimant. Id. § 1324b(j)(1).
The events that gave rise to our consideration of this matter began when Dr. Jacob Roginsky, a naturalized United States citizen who emigrated to this country from the Soviet Union filed allegations with the Special Counsel that the Navy had engaged in immigration-related unfair employment practices prohibited by the Antidiscrimination Provision. The Special Counsel commenced an investigation into Dr. Roginsky's charges. The Navy declined to cooperate with this investigation, arguing that the Antidiscrimination Provision does not apply to federal agencies and, hence, that the Special Counsel lacked authority to investigate. Acting on a request from the Special Counsel, we issued our opinion of May 2, 1990, in which we concluded that the Special Counsel had authority to pursue the investigation. The Navy then requested that we reconsider our opinion. See Navy Memorandum at 13; see also Special Counsel Memorandum at 1.
Thereafter, Dr. Roginsky filed an administrative claim directly against the Navy. As a result, the Special Counsel no longer had authority to file an administrative claim on behalf of Dr. Roginsky. See 28 C.F.R. § 44.303(d). We also understand that the dispute involving Dr. Roginsky has been settled. The precise question addressed by our opinion of May 2, 1990 — whether the Special Counsel may investigate the charges of immigration-related unfair [ 123] employment practices brought by Dr. Roginsky against the Navy — thus is no longer at issue.
The Special Counsel informs us that the complaint by Dr. Roginsky was the first in which the Special Counsel has been required to address the applicability of IRCA to a federal government department or agency. Memorandum for William P. Barr, Assistant Attorney General, Office of Legal Counsel, from Andrew M. Strojny, Acting Special Counsel at 3 (May 7, 1990). The Special Counsel also notes that "[b]ecause the overwhelming majority of federal jobs are restricted [to United States citizens] by statute, regulation or executive order . . . there cannot be a very large number of meritorious charges." Memorandum for William P. Barr, Assistant Attorney General, Office of Legal Counsel, from Andrew M. Strojny, Acting Special Counsel at 7 (Apr. 27, 1990).[2] We nonetheless reconsider the interpretation of IRCA set forth in our earlier opinion because the applicability of that act to federal agencies is an issue of importance.
The applicability of IRCA to federal agencies turns on whether federal agencies are "person[s] or other entities]" within the meaning of the Antidiscrimination Provision. The phrase "person or other entity" is not defined in IRCA. This broad language might ordinarily be understood to include not only natural persons but virtually all organizations, including public agencies. Our earlier opinion, in fact, rested primarily on the view that "the plain meaning of the phrase 'person or other entity' encompasses . . . 'entities]' such as the United States Government." OLC Memorandum at 3.
On further review, however, we believe that our earlier analysis did not adequately address the sovereign immunity implications of a "plain meaning" interpretation of the phrase and, in particular, on the settled rules of statutory construction that have evolved to preserve sovereign immunity. It is well established that:
[s]tatutory provisions which are written in such general language that they are reasonably susceptible to being construed as applicable both to the government and to private parties are subject to a rule of construction which exempts the government from their operation in the absence of other particular indicia supporting a contrary result in particular instances.
3 Norman J. Singer, Sutherland on Statutory Construction, § 62.01 (5th ed. 1992 rev.); [ 124] accord United States v. United Mine Workers of America, 330 U.S. 258, 272 (1947); United States v. Cooper Corp., 312 U.S. 600, 604 (1941). Therefore, the phrase "person or other entity" should not be read to include federal agencies in the absence of affirmative evidence that Congress intended that they be included. As discussed below, not only is there no evidence that Congress intended to include federal agencies within the phrase "person or other entity, " there is considerable evidence that Congress did not intend federal agencies to be included in this term.
Enforcement of the Antidiscrimination Provision against the federal government plainly would implicate the sovereign immunity of the United States. Sovereign immunity bars an action against the United States if '"the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration' ... or if the effect of the judgment would be 'to restrain the Government from acting, or to compel it to act.'" Dugan v. Rank, 372 U.S. 609, 620 (1963)(quoting Land v. Dollar, 330 U.S. 731, 738 (1947); Larson v. Domestic & Foreign Corp., 337 U.S. 682, 704 (1949)).[3]The Antidiscrimination Provision authorizes ALJs to enter an order awarding back pay, which would expend itself on the Treasury, or an order requiring the hiring of individuals, which would restrain the United States Government from acting or compel it to act. 8 U.S.C. § 1324b(g)(2)(B)(iii). It also provides for judicial enforcement of such orders by the district courts. Id. § 1324b(j). Therefore, the Antidiscrimination Provision may be applied to federal agencies only if Congress has waived the government's sovereign immunity against enforcement actions under section 1324b(j).[4]
In determining whether Congress has waived sovereign immunity. "[i]t is an error to suppose that the ordinary canons of statutory construction are to be applied." Fidelity Constr. Co. v. United States, 700 F.2d 1379, 1387 (Fed Cir.), cert, denied, 464 U.S. 826 (1983). In particular, the Supreme Court has held that waivers of sovereign immunity "cannot be implied but must be [ 125] unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969); see also United States v. Mitchell, 445 U.S. 535, 538 (1980). This requirement of an unequivocal expression of a waiver of sovereign immunity has recently been reaffirmed in a number of decisions. See United States Dep't of Energy v. Ohio, 503 U.S. 607, 615 (1992); United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992); and Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95 (1990).[5] As a general matter, waivers of sovereign immunity take the form of explicit statements that the federal government is subject to a statutory rule or will be subject to suit.[6] Statutes explicitly providing a right of action against a federal entity or conferring jurisdiction on a court to resolve claims against the federal government also have been held to constitute waivers of...
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