Petition for Review of a Decision of the Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer. OCAHO No. 9120004.
Before: Stephen S. Trott, Ferdinand F. Fernandez, and Thomas G. Nelson, Circuit Judges. Opinion by Judge Trott.
General Dynamics Corp. ("General Dynamics") petitions for review from the decision of the Administrative Law Judge ("ALJ"), Executive Office for Immigration Review, denying General Dynamics's request for attorney's fees. General Dynamics successfully defended against an action brought by the United States alleging that General Dynamics engaged in a pattern or practice of citizenship status discrimination in violation of the Immigration Reform and Control Act of 1986 ("IRCA"), 8 U.S.C. § 1324b. After holding an evidentiary hearing, the ALJ ruled in favor of General Dynamics and dismissed the government's complaint. The ALJ, however, denied General Dynamics's request for attorney's fees after determining the statutory prerequisite to a fee award had not been satisfied.
We have jurisdiction pursuant to 8 U.S.C. § 1324b(i). Because we are unable to detect a waiver of sovereign immunity that would allow General Dynamics to recover attorney's fees from the United States, we deny the petition for review.
The IRCA addresses two very different immigration problems. Section 1324a imposes sanctions against employers who knowingly hire or continue to employ aliens not authorized to work in the United States. 8 U.S.C. § 1324a(a). On the other hand, § 1324b is an anti-discrimination provision which prohibits citizenship status and national origin discrimination with respect to the hiring and firing of employees. 8 U.S.C. § 1324b(a).
Although § 1324b of the IRCA was enacted as an amendment to the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1101 et seq., the protections it provides are similar to the safeguards embodied in more familiar civil rights legislation. For example, § 1324b augments the goals found in Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., by extending the prohibition against national origin discrimination to employers with less than fifteen, but more than three, employees. 8 U.S.C. § 1324b(a)(2). Additionally, § 1324b prohibits employer discrimination based on citizenship status, a proscription not encompassed by other anti-discrimination statutes.
Alleged violations of § 1324b may be challenged either by the Office of Special Counsel for Immigration Related Unfair Employment Practices ("OSC") or by a private individual in an action brought before the Office of the Chief Administrative Hearing Officer ("OCAHO"). 8 U.S.C. § 1324b(d). Before an individual can instigate a private action, however, the claim first must be filed with the OSC. 8 U.S.C. § 1324b(b). If the OSC fails to file a complaint within 120 days of receiving the claim, the individual making the charge may initiate a private action before the OCAHO. 8 U.S.C. § 1324b(d)(2).
2. Facts and Prior Proceedings
The OSC, on its own initiative, filed a complaint against General Dynamics alleging General Dynamics engaged in a pattern or practice of citizenship status discrimination against U.S. workers, in violation of § 1324b. The OSC specifically claimed that General Dynamics entered into a contract to obtain certain skilled English workers, and that the contract excluded available and qualified U.S. workers from consideration for those same positions.
After holding a five day hearing, the ALJ determined that the reasons advanced by General Dynamics for favoring English contract workers were legitimately based on nondiscriminatory business ...