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 antidiscrim ination provision o f the Im m igration Reform and C ontrol A ct, 8 U .S.C . § 1 3 2 4 b (a)(l). 

A ccordingly, the Special Counsel for Im migration Related Unfair E m ploym ent Practices is 

w ithout authority to bring discrim ination charges against federal agencies.

August 17, 1992

M e m o r a n d u m O p i n i o n f o r t h e G e n e r a l C o u n s e l

D e p a r t m e n t o f t h e N a v y

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)(l), 

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

I.

The Antidiscrimination Provision of the Immigration Reform and Control 

Act (“IRCA”) provides that:

[i]t is an unfair immigration-related employment practice for a person or other entity to discriminate against

1 See Memorandum for Andrew M. Strojny, Acting Special Counsel, from Lynda Guild Simpson, 

Deputy Assistant Attorney General, Office of Legal Counsel, Re: Department o f Defense Cooperation

with Investigation o f Immigration Related Unfair Employment Practice, (May 2, 1990) ("OLC Memorandum’’); Memorandum for William P. Barr, Assistant Attorney General, Office of Legal Counsel, 

from Craig S. King, General Counsel, Department o f the Navy (May 17, 1990) (“Navy Memorandum”); 

Memorandum for J. Michael Luttig, Acting Assistant Attorney General, Office of Legal Counsel, from 

Andrew M. Strojny, Acting Special Counsel (June 1, 1990) (“Special Counsel Memorandum”).

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any individual (other than an unauthorized alien . . .) 

with respect to the hiring, or recruitment or referral for a 

fee, of [an] individual for employment or the discharging of [an] individual from employment —

(A) because of such individual’s national origin, or

(B) in the case of a protected individual .. . , because of such individual’s citizenship status.

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)(l). 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)(l), and the district court may enforce the A U ’s order on 

petition by the Special Counsel or by the private claimant. Id. § 1324b(j)(l).

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.ER. § 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

122
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 “[bjecause 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.

II.

The applicability of IRCA to federal agencies turns on whether federal 

agencies are “person[s] or other entit[ies]” 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:

[statutory 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.

2 The Special Counsel has informed us that one other “former Soviet citizen has filed a charge against 

the [Department of Defense]” and that this investigation is “on hold” pending reconsideration o f our 

May 2, 1990 opinion. See Memorandum for J. Michael Luttig, Acting Assistant Attorney General, 

Office o f Legal Counsel, from Andrew M. Strojny, Acting Special Counsel at 2 (Aug. 15, 1990).

123
1992 rev.); accord United States v. United Mine Workers o f 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.

ML

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

3 We assume for purposes o f this opinion that sovereign immunity would not bar administrative proceedings in which one executive agency would press charges against another executive agency and final 

decisional authority would be vested in the Executive. See Special Counsel Memorandum at 8-9, 19. 

We do not believe, however, that this assumption bears on the specific question presented here, because 

disputes under IRCA are subject to judicial enforcement procedures and thus are not resolved entirely 

within the executive branch. See supra p. 122.

4 The Antidiscrimination Provision also contemplates judicial enforcement of civil penalties, 8 U.S.C. 

§ 1324b(g)(B)(iv), (j), payable into the Treasury. The assessment of a civil penalty against a federal 

agency in a sense would not expend itself upon the fisc, because it would not have any net effect on the 

Treasury balance. Nor would the assessment of a civil penalty against an agency serve the goal of 

deterrence. Because there are no appropriations in agency budgets for payment of IRCA penalties, the 

funds to pay such penalties presumably would be drawn from the general fund of the Treasury, 31 

U.S.C. § 1304(a), and then returned to that same fund as miscellaneous receipts, 8 U.S.C. § 1356(c), 

with no effect whatsoever on the defendant agency. The fact that application of the Antidiscrimination 

Provision to federal agencies would render one aspect of the enforcement scheme ineffectual provides 

independent reason to question the application of the provision to these agencies.

124
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 o f Energy v. Ohio, 503 U.S. 607, 615 (1992); United States v. Nordic Village, Inc.,

503 U.S. 30, 33 (1992); and Irwin v. D ep’t o f Veterans Affairs, 498 U.S. 89, 

95 (1990).3 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 sovereign immunity.7

IRCA does not contain any waiver of sovereign immunity in the form of 

a substantive rule that explicitly applies to the United States. Nor is there 

any specific grant of jurisdiction to resolve claims against the federal government. In these respects, the contrast between IRCA and Title VII of the 

Civil Rights Act of 1964 is especially instructive on Congress’s intent in 

enacting IRCA. Unlike in IRCA, Congress expressly brought within the 

ambit of Title VII federal “executive agencies as defined in section 105 of 

title 5,” 42 U.S.C. § 2000e-16(a), and it did so because otherwise a claimant 

would have to “overcome a U.S. Government defense of sovereign immunity.” S. Rep. No. 415, 92d Cong., 1st Sess. 16 (1971). The absence of any 

reference to the federal government in IRCA is particularly significant in 

light of the settled law prior to IRCA’s enactment that Title VII provides the

5 The Special Counsel cites two Supreme Court cases on the standard for waivers of sovereign immunity, but neither is relevant in the present context. Keifer & Keifer v. Reconstruction Fin. Corp., 306 

U.S. 381 (1939), involved a claim against a government corporation. It has long been recognized that 

government corporations may be sued in the same manner as private corporations. Id. at 390. The 

application of IRCA contemplated here, however, would involve neither a government corporation nor 

any other specialized organizational form the use of which would subject the United States to suit. In 

Franchise Tax Bd. v. United States Postal Serv., 467 U.S. 512 (1984), the scope rather than the existence of a waiver o f sovereign immunity was at issue. The Court cited Keifer for the proposition that 

“intent to waive immunity . . . can only be ascertained by reference to underlying congressional policy.” 

Id. at 521.

6 See, e.g.. Civil Rights Act of 1964, 42 U.S.C. § 2000e 16(a); Clean Air Act, 42 U.S.C. §§ 7418(a), 

7604(a)(1); Clean Water Act, 33 U.S.C. §§ 1323, 1365; Resource Conservation and Recovery Act, 42 

U.S.C §§ 6961, 6972(a)(1)(a); Comprehensive Environmental Response, Compensation, and Liability 

Act ("CERCLA"), 42 U.S.C. § 9620(a).

The Secretary o f Labor’s decision in Pogue v. Department o f the Navy, Secretary of Labor Case No. 

87-ERA-21 (May 10, 1990), on which the Special Counsel relies, is not to the contrary. The determination that sovereign immunity does not shield the federal government from the “whistleblower” provision of CERCLA rested on the applicable statutory definition of “person,” which expressly includes the 

“United States Government." 42 U.S.C. § 9601(21). Congress, moreover, expressly provided that 

“[e]ach department, agency, and instrumentality of the United States . . . shall be subject to, and comply 

with, this chapter [including the whistleblower provision] in the same manner and to the same extent, 

both procedurally and substantively, as any nongovernmental entity.” Id. § 9620(a)(1).

1 See Schlafly v. Volpe, 495 F.2d 273, 282 (7th Cir. 1974) (finding waiver of sovereign immunity in 

right of action to contest discriminatory suspension of federal financial assistance in 42 U.S.C. § 2000d2); McKenzie v. United States, 536 F.2d 726, 728 (7th Cir. 1976) (finding waiver of sovereign immunity 

in express grant of jurisdiction to bankruptcy courts to resolve federal tax liability of bankrupt entities 

under 11 U.S.C. § ll(a)(2A ».

125
exclusive remedy against federal agencies for complaints of national origin 

discrimination. See Brown v. General Services Admin., 425 U.S. 820, 829 

(1976). Despite extensive discussion of the relationship between IRCA and 

Title VII with respect to private employers, there is no evidence in the committee reports on IRCA that Congress intended IRCA to supplement the 

exclusive Title VII remedy against federal agencies. See H.R. Rep. No. 682, 

99th Cong., 2d Sess., pt. 1, at 69-70 (1986); id., pt. n, at 12; see also Navy 

Memorandum at 11; infra pp. 127-28. Accordingly, we conclude that Congress has 

not waived the sovereign immunity of the United States for claims under IRCA.

In our prior opinion, we relied upon the exception to the Antidiscrimination Provision of IRCA for discriminatory actions required by executive 

order, section 1324b(a)(2)(C), to support our conclusion that federal agencies were covered by IRCA. We reasoned there that “the creation of an 

exception for discrimination required by [executive] orders strongly suggests that Congress understood federal agencies otherwise to be within the 

scope of the antidiscrimination provision” because “executive orders govern 

the employment decisions of the federal government rather than those of 

private entities.” OLC Memorandum at 4. It is clear that we were proceeding at that point in the opinion on an assumption that executive orders never 

govern actions of private employers. In fact, however, some executive orders do affect private parties. For example, Executive Order No. 10865, 3 

C.F.R. § 62 (1960), reprinted in 50 U.S.C. § 435 note, effectively forbids 

certain private employers conducting business with the government from 

hiring individuals who, due to their citizenship status, could not obtain the 

requisite security clearance.8

Having focused on the fact that some executive orders do extend to 

private employers, we believe that the exception for “executive orders” must 

be understood as directed at “discrimination” by government contractors 

pursuant to executive orders such as No. 10865, not at the actions of federal government agencies. This is the more natural understanding of the 

exception, given that it appears among other exceptions that apply to discrimination by government contractors. It is merely one of several exceptions 

for decisions made on the basis of citizenship status that are “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 

departm ent of the Federal, State, or local government.” 8 U.S.C. §

8 Section 1 (a) of Executive Order No. 10865, requires the issuance of regulations to govern “releases of 

classified information to or within United States industry that relate to bidding on, or the negotiation, 

award, performance, or termination of, [government] contracts.” These regulations require security 

clearances for private employees to whom classified information may be released. See, e.g., 10 C.F.R. 

pt. 710 (security clearance program for contractors handling nuclear material); 32 C.F.R. pt. 155 (security clearance program for defense contractors).

The Special Counsel asserts that Congress enacted the exception for executive orders specifically to 

address Executive Order No. 11935, 3 C.F.R. 146 (1977), reprinted in 5 U.S.C. § 3301 note, which 

provides that “ [n]o person shall be given any appointment in the competitive service unless such person 

is a citizen or national o f the United States.” See Special Counsel Memorandum at 4. The Special 

Counsel cites no authority in support o f this assertion, and we have discovered none.

126.
1324b(a)(2)(C). Of course, when it is understood that the exception was 

included so as to exempt private employer activities required by law, the 

existence of the exception does not support the inference that federal agencies would otherwise be covered by the Antidiscrimination Provision.9 The 

exception plainly does not constitute an “unequivocal” expression of congressional intent to waive the sovereign immunity of the United States.

To the extent that there is any evidence in the legislative history on the 

specific question presented here, it too suggests that Congress did not contemplate that federal agencies would be included under the Antidiscrimination 

Provision. First, there is no express discussion of the application of IRCA 

to federal agencies, which one would certainly expect to find if Congress 

intended to cover these agencies. Second, although the committee reports 

on the bills that became IRCA and on similar proposals from earlier Congresses include detailed estimates of the enforcement costs of the legislation 

to the federal government, they make no mention of compliance costs. See

S. Rep. No. 485, 97th Cong., 2d Sess. 52-56 (1982); S. Rep. No. 62, 98th 

Cong., 1st Sess. 57-64 (1983); H.R. Rep. No. 115, 98th Cong., 1st Sess., pt.

1, at 99-107 (1983); S. Rep. No. 132, 99th Cong., 1st Sess. 57-66 (1985);

H.R. Rep. No. 682, 99th Cong., 2d Sess., pt. 1, at 128-29 (1986). Had 

Congress understood that the federal government would come within IRCA, 

these reports almost certainly would have included cost estimates for federal 

agency compliance.10

The Special Counsel relies primarily on a passage from the Senate Report 

on IRCA in support of his position that federal agencies are included within 

the act. The passage states that the phrase “person or other entity,” as used 

in the Employer Sanction Provision, covers “individuals, partnerships, cor9 The Special Counsel argues that, even if IRCA itself does not waive sovereign immunity, a private 

claimant nonetheless may obtain judicial enforcement of the Antidiscrimination Provision by invoking 

the waivers contained in the Administrative Procedure Act, the Federal Tort Claims Act, and the Tucker 

Act. See Special Counsel Memorandum at 10 n.7. The assertion that other avenues may be available 

for judicial enforcement of the substantive provisions of the Antidiscrimination Provision is not responsive to the conclusion that we reach above. Our point is not that the courts may never enforce a substantive rule of conduct against the federal government; rather, it is that the substantive rules of the Antidiscrimination Provision, read in light of longstanding principles of statutory construction, do not encompass governmental conduct.

Moreover, we are unaware of any evidence that Congress wished to include federal agencies within 

the Antidiscrimination Provision but to relegate claims against these agencies — unlike claims against 

private entities — to an enforcement scheme different from that set forth in the provision. The more 

plausible inference is that Congress did not intend the Antidiscrimination Provision to cover federal 

agencies in the first place. In fact, the provisions relied on by the Special Counsel woutd provide relief 

against federal agencies less complete than, or inconsistent with, the provisions in IRCA. The Administrative Procedure Act waives sovereign immunity for suits brought by persons “aggrieved by agency 

action” but permits only those suits that “seek[] relief other than money damages.” 5 U.S C. § 702 

(emphasis added). The waivers in the Federal Tori Claims Act (28 U.S C. § 1346(b)) and the Tucker 

Act (28 U.S C. §§ 1346(a)(2), 1491) would permit damage actions but would provide for a sequence of 

judicial review — involving either the district court or the Claims Court — that is inconsistent with that 

provided in the Antidiscrimination Provision.

10 The Supreme Court has recently stated that “the ‘unequivocal expression* of elimination of sovereign immunity that we insist upon is an expression in statutory text If clarity does not exist there, it 

cannot be supplied by a committee report.” United States v. Nordic Village, Inc , 503 U.S. 30, 37 (1992) 

(citations omitted). Our analysis of the legislative history is thus purely confirmatory.

127
porations and other organizations, nonprofit and profit, private and public,

who employ, recruit, or refer persons for employment in the United States.” 

S. Rep. No. 132, at 32 (emphasis added). Even if we were to discount the 

Supreme Court’s statement in Nordic Village and accept the assertion that 

Congress could waive sovereign immunity through legislative history, we 

could not conclude that the mention of “public” employers in this passage 

compels the inclusion of federal agencies within the coverage of IRCA. 

States and municipalities may act as employers and many states operate 

employment agencies. All o f these entities would be “public” employers 

and thus could well be the organizations referenced in the Senate Report."

nv.

Our conclusion that the phrase “person or other entity” as used in the 

Antidiscrimination Provision does not include federal agencies is reinforced 

by the fact that a contrary construction would raise serious separation of 

powers issues. Were we to conclude that federal agencies are subject to the 

Antidiscrimination Provision, an officer within the Department of Justice, 8 

U.S.C. § 1324b(c)(l), would have authority to sue other federal agencies in 

federal court. Id. § 1324b(j)(l) (authorizing Special Counsel to seek enforcement by the district court of ALJ orders). Such intra-executive branch 

litigation likely would contravene Articles II and III of the Constitution.

By its terms, Article II vests the entire executive power in the President. 

U.S. Const, art. II, § 1, cl. 1. As a necessary concomitant to this exclusive 

grant of power, the President has the authority to resolve intra-executive 

branch disputes in order to secure “that unitary and uniform execution of the 

laws which Article II of the Constitution evidently contemplated in vesting 

general executive power in the President alone.” Myers v. United States, 272 

U.S. 52, 135 (1926). Suits by one executive branch agency against another, 

however, would, in likely contravention of Article II, transfer the power to 

resolve such disputes from the President to the federal courts. See generally

Constitutionality o f Nuclear Regulatory Commission’s Imposition o f Civil

Penalties on the A ir Force, 13 Op. O.L.C. 131, 135-38 (1989).

Intra-executive branch lawsuits would also raise serious questions under 

Article III of the Constitution. Article III courts may resolve only those

" The Special Counsel also cites the House Report on IRCA, which states that the Employer Sanction 

Provision applies to “all employers regardless of the number of employees, as well as to those persons 

who recruit or for a fee refer undocumented aliens for employment.” H.R. Rep. No. 682, at 56. This 

statement adds nothing to the statement in the Senate Report; in fact, unlike the Senate Report, the 

House Report does not even state that “ public” entities are included within the Employer Sanction 

Provision.

Apart from legislative history, the Special Counsel observes that regulations promulgated by the Immigration and Naturalization Service for enforcement of the Employer Sanction Provision define the 

term “entity” to include “governmental bod[ies].” 8 C.F.R. § 274a. 1(b). The regulation does not refer 

explicitly to the federal government, however, and in any event, administrative regulations “can neither 

enlarge nor diminish the scope of the waiver of immunity” set forth by Congress in the underlying 

statute. M illard v. United States. 16 Cl. Ct. 485, 490 (1989), aff'd. 916 F.2d 1 (Fed. Cir. 1990), cert,

denied, 500 U.S. 916 (1991).

128
disputes in which there is a genuine “Case[]” or “Controversy]” involving a 

concrete adversity of interests between the parties. U.S. Const, art. Ill, § 2. 

Given that there is ultimately but a single interest of the executive branch — 

that determined by the President — litigation between two executive agencies would not appear to involve the requisite adversity of interests to constitute 

a “Case[]” or “Controvers[y]” within the meaning of Article III. See, e.g..

Defense Supplies Corp. v. United States Lines Co., 148 F.2d 311, 312-13 (2d 

Cir.), cert, denied, 326 U.S. 746 (1945) (dismissing suit against United States 

by a corporation whose stock was wholly owned by the United States on 

ground that “this [is] . . . nothing more than an action by the United States 

against the United States .... [T]here is no real case or controversy.”); 

United States ex. rel. TVA v. Easement and Right o f Way, 204 F. Supp. 837, 

839 (E.D. Tenn. 1962) (“[I]nter-agency disputes . . . are not subject to settlement by adjudication .... The settlement of interagency problems within 

the United States Government is not a judicial function but rather an administrative function.”); 13 Op. O.L.C. at 138-141; Proposed Tax Assessment

Against the United States Postal Service, 1 Op. O.L.C. 79, 81-82 (1977).12

Interpreting the phrase “other entit[ies]” to include federal agencies would 

also raise the troublesome specter of litigation by the executive branch against 

coequal branches of the federal government, for there would be no principled basis on which to exclude the Congress and the judiciary from the 

reach of the Antidiscrimination Provision. Given the extraordinary nature of 

litigation by the executive branch — here, the Special Counsel — against coequal branches of the government, we hesitate to infer that such was authorized 

by Congress in the absence of affirmative evidence. This reticence is particularly appropriate given that Congress has taken great care to condition the 

applicability of other federal employment laws to itself and the judiciary.13

12 The courts sometimes decide cases nominally between two executive branch bodies, where one of 

the parties in interest is a private entity not within the President’s control. See, e.g.. United States v. 

ICC, 337 U S. 426 (1949) (United States in its proprietary status as a'shipper sought from railroads 

monetary relief that had been denied by the Interstate Commerce Commission); Secretary o f A griculture v. United States, 347 U.S. 645 (1954) (Secretary of Agriculture intervened in action by private 

agricultural interests before the ICC to recover for railroad overcharges); Udall v. Federal Power Comm 'n,

387 U.S. 428 (1967) (Secretary of Interior intervened on behalf of private power company and m unicipality seeking Federal Power Commission approval of dam); United States v. Federal M aritime Comm 'n,

694 F.2d 793 (D.C. Cir. 1982) (Department of Justice challenged ocean carriers’ agreement that earlier 

had been approved by Federal Maritime Commission).

In an enforcement action brought by the Special Counsel against a federal agency, however, the United 

States would be the real party in interest on both sides of the litigation. The defendant would be an 

agency of the United States, and the real party in interest on the prosecution side would also be the 

United States, acting in its sovereign capacity. Only where the Special Counsel has declined to sue and 

a claimant brings suit directly against a "person or other entity” alleged to have engaged in discrimination, see 8 U.S.C. § 1324b(d)(2), could there exist the requisite concrete adversity of interests, because 

only in this circumstance would one of the litigants be beyond presidential control.

13 For example, in enacting the Civil Rights Act of 1991, Congress substantially limited the procedural protections and enforcement provisions available to plaintiff-employees seeking various types of 

relief against Congress. See §§ 117, 301-314 of the Civil Rights Act of 1991, Pub L. No. 102-166, 105 

Stat. 1071, 1080, 1088-95 (1991) (providing for procedures and remedies available to House and Senate employees under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e-16), and also providing for

Continued

129
The problems with interpreting the phrase “person or other entity” in IRCA 

to include federal agencies would not be confined to the Antidiscrimination 

Provision alone. For example, many of the difficulties identified above would 

also exist with respect to the parallel Employer Sanction Provision of IRCA, 

which prohibits the hiring by any “person or other entity” of “unauthorized 

alien[s].” 8 U.S.C. § 1324a(a)(l).'4 Were we to conclude that federal agencies are “person[s] or other e n titie s ] th e Employer Sanction provision would 

contemplate the imposition of mandatory civil penalties on the government, 

id. § 1324a(e)(4), requiring a waiver of sovereign immunity. It would permit 

the imposition of criminal penalties on a federal agency, id. § 1324a(f)(l), 

without any specific evidence that such an extraordinary measure was intended. Moreover, because the exclusive enforcement mechanism for such 

penalties would be a suit by the Attorney General against another federal 

agency, id. § 1324a(e)(9), the Attorney General could bring an enforcement 

action against another executive agency and indeed against the Congress or 

the judiciary.15

The Supreme Court has admonished that constructions of a statute that 

would render it constitutionally suspect should be avoided where a reasonable alternative reading of the statute is available. See DeBartolo Corp. v. 

Florida G ulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); 

NLRB v. Catholic Bishop o f Chicago, 440 U.S. 490, 501 (1979). Here, such 

a reading — under which the phrase “person or other entity” would not 

include the federal government — not only is reasonable but is consistent with 

established principles of statutory construction and sovereign immunity.

13 (....continued)

procedures and remedies for Senate employees under the Age Discrimination in Employment Act of 1967 

(29 U.S.C. § 633a), and the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12112-12114)).

Prior to enactment of the Civil Rights Act of 1991, Title VII barred executive branch agencies from 

discrim inating on the basis of “race, color, religion, sex, or national origin,” but that prohibition applied only to those few “units of the legislative and judicial branches . . . having positions in the competitive service.” 42 U.S.C. § 2000e-16(a). The Fair Labor Standards Act was, and still is, similarly 

limited. 29 U.S.C. § 203(e)(2)(A)(iii).

u Congress enacted the Antidiscrimination Provision in response to the concern that employers might 

discrim inate as a result o f the Employer Sanction Provision against persons legitimately in this country. 

See H.R. Rep. No. 682, at 68. Thus, “[t]he antidiscrimination provisions of th[e] [statute] are a complem ent to the sanctions provisions, and must be considered in this context." H.R. Conf. Rep. No. 1000, 

99th Cong., 2d Sess. 87 ( 1986). The sam e “person[s] or other entit[ies]” are subject to both the Antidiscrim ination Provision and the Employer Sanction Provision.

15 Application of the Employer Sanction Provision of IRCA to federal agencies would bar those agencies from hiring only two narrow classes of aliens not already barred by Exec. Order No. 11935, see

supra note 9, and similar restrictions found in annual appropriations since 1943. See, e.g., Treasury, 

Postal Service and General Government Appropriations Act, 1992, Pub. L. No. 102-141, § 607, 105 

Stat. 834, 868-69 (1991) (“Appropriations Act for 1992” ) (current appropriation); 5 U.S.C. § 3101 note 

(listing prior appropriations). Specifically, such an application of IRCA would prohibit federal agencies from hiring for a position outside o f the competitive service (i.e., a position not covered by Exec. 

O rder No. 11935), those few unauthorized aliens to whom compensation otherwise may be paid under 

an exception to appropriations legislation. Such individuals would have to be "person[s] in the service 

o f the United States . . . who, being eligible for citizenship, ha[ve] filed . . . declaration^] of intention 

to become . . . citizen[s] of the United States . . . and [are] actually residing in the United States,” or 

“personfs] who owe[] allegiance to the United States,” or foreign nationals of certain specified countries. Appropriations Act for 1992, § 607, 105 Stat. at 868-69. There is no evidence that Congress 

wished to subject federal agencies to the Employer Sanction Provision of IRCA to obtain this incremental additional coverage.

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CONCLUSION

We conclude on careful reconsideration of the statutory text of IRCA, its 

structure, purpose, and legislative history that federal agencies are not included within the phrase “person or other entity” in 8 U.S.C. § 1324b(a)(l). 

Accordingly, the Special Counsel is without authority to investigate or to 

bring charges of immigration-related employment discrimination against federal agencies. Discrimination by federal agencies based upon national origin 

is fully redressable under Title VII of the Civil Rights Act of 1964, which by 

its terms applies to federal executive agencies.16

Our contrary opinion of May 2, 1990, is withdrawn.

JOHN C. HARRISON

Deputy Assistant Attorney General

Office o f Legal Counsel

16 Title VII does not provide a remedy for employment discrimination based upon citizenship status. 

However, since 1943, annual appropriations acts passed by Congress have, with narrow exceptions, 

prohibited the use of appropriated funds to pay salaries to federal employees who are not “citizen[s] of 

the United States.” See, e.g.. Appropriations Act for 1992, § 607, 105 Stat. at 868-69 (current appropriation); 5 U.S.C. § 3101 note (listing prior appropriations); see also supra note 15. As the Special 

Counsel observes, “the vast majority of federal civil service positions are open only to United States 

citizens.” Special Counsel Memorandum at 4. Thus, there are only a limited number o f circumstances 

in which there is even the potential for a cognizable claim of citizenship status discrimination.

O f course, our opinion does not preclude federal agencies, as a matter of policy, from continuing to 

adhere to the immigration status verification procedures prescribed by the Office of Personnel M anagement. See Federal Personnel Manual Supplement 296-33, Subch. 5-2.6a (1988) (requiring use of Standard Form 1-9).

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