Enforcement Jurisdiction of the Special Counsel for
          Immigration Related Unfair Employment Practices


F ederal agencies are not included in the phrase “ person o r other entity” in the an tid iscrim in a­
    tio n p ro v isio n 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 C ounsel for Im m igration R elated U nfair E m ploym ent P ractices is
    w ithout authority to bring discrim ination charges against federal agencies.



                                                                                   August 17, 1992


                M   em orandum       O   p in io n f o r t h e   G   eneral   C o u n sel
                                  D epartm ent       o f the     N   avy




   This memorandum responds to your request that we reconsider our opin­
ion o f 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 govern­
ment 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 prac­
               tice 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 M em o­
randum ’’); M emorandum 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 M em orandum ”);
Mem orandum for J. Michael Luttig, Acting Assistant Attorney General, Office of Legal Counsel, from
Andrew M. Strojny, Acting Special Counsel (June 1, 1990) (“Special Counsel M emorandum”).

                                                   121
             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 discharg­
             ing of [an] individual from employment —


              (A) because of such individual’s national origin, or
              (B) in the case of a protected individual . . . , be­
             cause of such individual’s citizenship status.


 8 U.S.C. § 1324b(a)( 1) (emphasis added). Under IRCA’s enforcement pro­
 visions, 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 ini­
 tially come before an administrative law judge (“ALJ”) within the Department
o f Justice. 

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. 

     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. 

Any “person ag­
grieved” by the ALJ’s order may seek review in the appropriate court of
appeals, 

and the district court may enforce the A U ’s order on
petition by the Special Counsel or by the private claimant. 

     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 Coun­
sel that the Navy had engaged in immigration-related unfair employment
practices prohibited by the Antidiscrimination Provision. The Special Coun­
sel commenced an investigation into Dr. Roginsky’s charges. The Navy
declined to cooperate with this investigation, arguing that the Antidiscrimi­
nation 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 Memo­
randum 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 o f 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. M emo­
randum 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 Anti-
discrimination 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 agen­
cies. Our earlier opinion, in fact, rested primarily on the view that “the
plain meaning of the phrase ‘person or other entity’ encompasses . . .
‘e n titie s]’ 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 mean­
ing” 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 lan­
         guage 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 govern­
         ment 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 o f Defense]” and that this investigation is “on hold” pending reconsideration o f our
M ay 2, 1990 opinion. See Memorandum for J. Michael Luttig, Acting Assistant Attorney G eneral,
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, 

, 272 (1947); United States v. Cooper Corp., 

, 604
(1941). Therefore, the phrase “person or other entity” should not be read to
include federal agencies in the absence of affirmative evidence that Con­
gress 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 gov­
ernm ent plainly would implicate the sovereign immunity of the United States.
Sovereign immunity bars an action against the United States if ‘“ the judg­
ment 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, 

, 620 (1963)(quoting Land v. Dollar, 

, 738
(1947); Larson v. Domestic & Foreign Corp., 

, 704 (1949)).3
The Antidiscrimination Provision authorizes ALJs to enter an order award­
ing back pay, which would expend itself on the Treasury, or an order requiring
the hiring of individuals, which would restrain the United States Govern­
ment 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. 

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, 

, 1387 (Fed.
Cir.), cert, denied, 

(1983). In particular, the Supreme Court
has held that waivers of sovereign immunity “cannot be implied but must be


   3 We assum e for purposes o f this opinion that sovereign immunity would not bar administrative pro­
ceedings in w hich 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 assum ption bears on the specific question presented here, because
disputes under IRCA are subject to judicial enforcement procedures and thus are not resolved entirely
w ithin the executive branch. See supra p. 122.
   4 The A ntidiscrim ination Provision also contemplates judicial enforcement of civil penalties, 8 U.S.C.
§ 1324b(g)(B)(iv), (j), payable into the Treasury. The assessment o f 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
T reasury balance. N or would the assessm ent of a civil penalty against an agency serve the goal of
deterrence. Because there are no appropriations in agency budgets for payment o f IRCA penalties, the
funds to pay such penalties presumably would be drawn from the general fund o f the Treasury, 31
U.S.C. § 1304(a), and then returned to that same fund as m iscellaneous receipts, 8 U.S.C. § 1356(c),
with no effect w hatsoever on the defendant agency. The fact that application of the Antidiscrimination
Provision to federal agencies would render one aspect o f the enforcem ent scheme ineffectual provides
independent reason to question the application of the provision to these agencies.

                                                   124
unequivocally expressed.” United States v. King, 

, 4 (1969); see
also United States v. Mitchell, 

, 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 D ep't o f En­
ergy v. Ohio, 

, 615 (1992); United States v. Nordic Village, Inc.,

, 33 (1992); and Irwin v. D ep’t o f Veterans Affairs, 

,
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 statu­
tory 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 waiv­
ers 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 gov­
ernment. 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 immu­
nity.” 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 im m u­
 nity, but neither is relevant in the present context. Keifer & Keifer v. Reconstruction Fin. Corp., 

(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. 

The
application o f 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., 

(1984), the scope rather than the exist­
ence o f 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.”

   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 determ ina­
tion that sovereign immunity does not shield the federal government from the “ whistleblower” provi­
sion of CERCLA rested on the applicable statutory definition o f “person,” which expressly includes the
“United States G overnm ent." 42 U.S.C. § 9601(21). Congress, moreover, expressly provided that
“[e]ach departm ent, 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.” 

   1 See Schlafly v. Volpe, 

, 282 (7th Cir. 1974) (finding waiver o f sovereign immunity in
right of action to contest discriminatory suspension of federal financial assistance in 42 U.S.C. § 2000d-
2); McKenzie v. United States, 

, 728 (7th Cir. 1976) (finding waiver o f sovereign immunity
in express grant o f jurisdiction to bankruptcy courts to resolve federal tax liability of bankrupt entities
under 11 U.S.C. § ll(a )(2 A » .

                                                   125
exclusive remedy against federal agencies for complaints of national origin
discrimination. See Brown v. General Services Admin., 

, 829
(1976). Despite extensive discussion of the relationship between IRCA and
Title VII with respect to private employers, there is no evidence in the com­
m ittee 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); 

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 Antidiscrimina­
tion Provision of IRCA for discriminatory actions required by executive
order, section 1324b(a)(2)(C), to support our conclusion that federal agen­
cies were covered by IRCA. We reasoned there that “the creation of an
exception for discrimination required by [executive] orders strongly sug­
gests that Congress understood federal agencies otherwise to be within the
scope of the antidiscrimination provision” because “executive orders govern
the employment decisions o f the federal government rather than those of
private entities.” OLC Memorandum at 4. It is clear that we were proceed­
ing at that point in the opinion on an assumption that executive orders never
govern actions of private employers. In fact, however, some executive or­
ders 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 fed­
eral government agencies. This is the more natural understanding of the
exception, given that it appears among other exceptions that apply to dis­
crimination 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
determ ines to be essential for an employer to do business with an agency or
dep artm en t o f the Federal, State, or local governm ent.” 8 U.S.C. §

   8 Section 1(a) o f Executive Order No. 10865, requires the issuance of regulations to govern “releases of
classified inform ation to or within U nited States industry that relate to bidding on, or the negotiation,
aw ard, perform ance, 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 (secu­
rity 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
C ounsel 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 agen­
cies would otherwise be covered by the Antidiscrimination Provision.9 The
exception plainly does not constitute an “unequivocal” expression of con­
gressional 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 con­
template 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 Con­
gresses 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, cor­

  9 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 T ucker
Act. See Special Counsel Memorandum at 10 n.7. The assertion that other avenues may be available
for judicial enforcem ent of the substantive provisions of the Antidiscrimination Provision is not respon­
sive to the conclusion that we reach above. Our point is not that the courts may never enforce a substan­
tive rule of conduct against the federal government; rather, it is that the substantive rules o f the Antidis­
crim ination Provision, read in light of longstanding principles of statutory construction, do not encom ­
pass 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 claim s 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 A dm in­
istrative 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
(em phasis 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 sover­
eign 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 , 

, 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 C ourt’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 o f “public” employers in this passage
com pels the inclusion of federal agencies within the coverage o f 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. 

(authorizing Special Counsel to seek en­
forcement 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 o f 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, 

, 135 (1926). Suits by one executive branch agency against another,
however, would, in likely contravention o f 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, 

, 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 H ouse Report on IRCA, which states that the Employer Sanction
Provision applies to “all employers regardless of the num ber of employees, as well as to those persons
w ho recruit or for a fee refer undocumented aliens for employment.” H.R. Rep. No. 682, at 56. This
statem ent 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 Im­
m igration and Naturalization Service for enforcement o f 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 fed era l government, however, and in any event, adm inistrative regulations “can neither
enlarge nor dim inish the scope of the w aiver of immunity” set forth by Congress in the underlying
statute. M illard v. United States. 

, 490 (1989), aff'd . 

(Fed. Cir. 1990), cert,
denied, 500 U .S. 916 (1991).

                                                   128
disputes in which there is a genuine “Case[]” or “C ontroversy]” 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 agen­
cies 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., 

, 312-13 (2d
Cir.), cert, denied, 

(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, 

,
839 (E.D. Tenn. 1962) (“[I]nter-agency disputes . . . are not subject to settle­
ment by adjudication . . . . The settlement of interagency problems within
the United States Government is not a judicial function but rather an adm in­
istrative 

; Proposed Tax Assessment
Against the United States Postal Service, 

, 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 prin­
cipled 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 co­
equal branches of the government, we hesitate to infer that such was authorized
by Congress in the absence of affirmative evidence. This reticence is particu­
larly 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 g ricu l­
ture v. United States, 

(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,

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

(D.C. Cir. 1982) (Department of Justice challenged ocean carriers’ agreement that earlier
had been approved by Federal Maritime Commission).
  In an enforcem ent action brought by the Special Counsel against a federal agency, however, the U nited
States would be the real party in interest on both sides o f the litigation. The defendant would be an
agency o f 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 claim ant brings suit directly against a "person or other entity” alleged to have engaged in discrim ina­
tion, see 8 U.S.C. § 1324b(d)(2), could there exist the requisite concrete adversity of interests, because
only in this circum stance would one of the litigants be beyond presidential control.
   13 For example, in enacting the Civil Rights Act of 1991, Congress substantially limited the proce­
dural protections and enforcement provisions available to plaintiff-employees seeking various types o f
relief against Congress. See §§ 117, 301-314 o f 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 S en­
ate employees under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e-16), and also providing for

                                               C ontinued

                                                  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 agen­
cies are “person[s] or other e n t i t i e s ] t h e Employer Sanction provision would
contemplate the imposition o f mandatory civil penalties on the government,

requiring a waiver of sovereign immunity. It would permit
the imposition of criminal penalties on a federal agency, 

without any specific evidence that such an extraordinary measure was in­
tended. Moreover, because the exclusive enforcement mechanism for such
penalties would be a suit by the Attorney General against another federal
agency, 

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 reason­
able alternative reading of the statute is available. See DeBartolo Corp. v.
Florida G ulf Coast Bldg. & Constr. Trades Council, 

, 575 (1988);
NLRB v. Catholic Bishop o f Chicago, 

, 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)).
   P rior to enactm ent of the Civil Rights Act of 1991, Title VII barred executive branch agencies from
discrim inating on the basis o f “race, color, religion, sex, or national origin,” but that prohibition ap­
plied only to those few “ units of the legislative and judicial branches . . . having positions in the com ­
petitive service.” 42 U.S.C. § 2000e-16(a). The Fair L abor Standards Act was, and still is, similarly
lim ited. 29 U.S.C. § 203(e)(2)(A)(iii).
   u C ongress enacted the Antidiscrimination Provision in response to the concern that em ployers 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 antidiscrim ination provisions of th[e] [statute] are a com ple­
m ent to the sanctions provisions, and m ust 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 Antidis­
crim ination Provision and the Employer Sanction Provision.
   15 A pplication o f the Employer Sanction Provision of IRCA to federal agencies would bar those agen­
cies from hiring only two narrow classes of aliens not already barred by Exec. Order No. 11935, see
supra note 9, and sim ilar 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 agen­
cies 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 U nited States . . . who, being eligible for citizenship, ha[ve] filed . . . declaration^] of intention
to becom e . . . citizen[s] o f 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 coun­
tries. Appropriations Act for 1992, § 607, 105 Stat. at 868-69. There is no evidence that Congress
w ished to subject federal agencies to the Employer Sanction Provision o f IRCA to obtain this increm en­
tal additional coverage.

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                                        CONCLUSION

    We conclude on careful reconsideration of the statutory text o f IRCA, its
structure, purpose, and legislative history that federal agencies are not in­
cluded 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 fed­
eral 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 appro­
priation); 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 circum stances
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 o f policy, from continuing to
adhere to the immigration status verification procedures prescribed by the Office of Personnel M anage­
ment. See Federal Personnel Manual Supplement 296-33, Subch. 5-2.6a (1988) (requiring use o f S tan­
dard Form 1-9).

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