Employer Solutions Staffing Group II, L.L.C. v. Office of the Chief Administrative Hearing Officer
833 F.3d 480
5th Cir.2016Background
- ESSG contracted to provide temporary workers to Larsen Manufacturing in El Paso; Flexicorps (in El Paso) hired workers, examined original identity documents, made color photocopies, and completed Section 1 of I-9s.
- Flexicorps sent photocopies and I-9s to ESSG’s central office in Edina, Minnesota, where ESSG personnel reviewed the photocopies and completed/signatured Section 2.
- ICE inspected I-9s and alleged substantive paperwork violations for 242 employees, asserting Section 2 attestations were false because the signer did not personally examine originals in the employee’s presence.
- An OCAHO ALJ granted summary decision for ICE, fined ESSG (except for one uncontested missing I-9), and ESSG petitioned for judicial review in the Fifth Circuit.
- Fifth Circuit reviewed statutory text, DHS regulations, the I-9 form, the ALJ decision, and administrative-deference doctrines; it concluded regulated parties lacked fair notice that the agency prohibited “corporate” (entity) attestation.
Issues
| Issue | Plaintiff's Argument (ESSG) | Defendant's Argument (DHS/ICE) | Held |
|---|---|---|---|
| Whether the person who signs Section 2 must personally examine originals in the employee’s presence | Corporate attestation is allowed; ESSG’s MN signer could rely on its TX agent’s in-person examination | Section 2 requires personal attestation: the signer must have examined originals and seen the employee | Held: Corporate attestation permissible; the statute/regulations/I-9 did not give fair notice that personal-only attestation was required |
| Whether a corporation may attest via different representatives (corporate/entity attestation) | Statute allows a “person or entity” to attest; regulation permits employer/agent signatures | Agency interpretation forbids corporate attestation; signer must be the same individual who examined originals | Held: Text and regulations permit corporate/entity attestation; agency’s contrary reading was not persuasive |
| Proper level of deference to agency interpretation (Auer/Chevron vs. Skidmore) | Agency’s adjudication and the I-9 form should control | Agency urges Auer/Chevron deference to form/ALJ interpretation | Held: Auer/Chevron inapplicable due to lack of fair notice and weak prior agency guidance; only Skidmore weight applied and was unpersuasive |
| Validity of monetary fine for alleged Section 2 violations | ESSG challenged fines as unsupported because procedure was permitted | ICE imposed fines for substantive paperwork violations for 242 I-9s | Held: Fines vacated (except the uncontested missing I-9 fine) because ESSG lacked fair notice that its practice violated the law |
Key Cases Cited
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (recognizing agency deference to reasonable statutory constructions)
- Auer v. Robbins, 519 U.S. 452 (deference to agency interpretations of its own ambiguous regulations)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (weight of agency interpretation depends on persuasiveness)
- United States v. Mead Corp., 533 U.S. 218 (statutory interpretation deference depends on whether agency action has force of law)
- Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (agencies must provide fair warning before imposing penalties; limits on deference where regulated parties lacked notice)
- FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (sanctions set aside where regulated parties lacked sufficient notice)