*1 * * * and Jerry Johnson, Jr., Kemp, E. review is denied Thomas for petition The union’s Irby, in their official for enforce- and Constance cross-petition the NLRB’s and the Okla- capacities as members of granted. isment Commission, Defendants- Tax homa Appellants. Union; Nation- Liberties
American Civil Center; Change Immigration Law al Win; of Com- Arizona Chamber Industry; Associ- merce and Colorado Industry; Illi- and ation of Commerce Commerce; Indiana of nois Chamber Commerce; of Kansas Chamber Kentucky Commerce; of Chamber Commerce; Missouri of Chamber OF the OF COMMERCE CHAMBER Industry; and of Commerce Chamber America; of Okla- STATES UNITED Commerce; Jersey of New Chamber Chamber of Commerce homa State Pennsylvania of Business Chamber Industries; Metropoli- and Associated Industry; of and Tennessee Chamber Commerce, tan Tulsa Chamber Industry; Texas Asso- and Commerce City Inc.; Cham- Oklahoma Greater Business; Association ciation Commerce, Inc.; Oklahoma ber of Business; Virginia Washington West Association; Oklahoma Restaurant Lawyers’ Commerce; Chamber Lodging Association, Plain- and Hotel Rights of the for San Committee Civil tiffs-Appellees, Area; Bay American Asian Francisco Fund; Legal Education Defense Center; Legal Pacific American Asian Inc.; Immigration Legal, EDMONDSON, in his offi- Centro Drew W.A. Legal; Equality; Le- La Raza Centro capacity cial Society-Employment Law Oklahoma; gal Aid Keith McAr- state of Center; Evans, Ashton, National Center for Lesbian tor, Mark Ann Stan Poverty Rights; Hernandez, Law Cen- Cong-Tang, Rita Southern Elvia Rights ter; Employment Rendon, Maxwell, Women’s Teresa Sammie Williams, Clinic; Initiative for Sr., Human Resource Vasquez, and Juanita Workforce; Legal Associated Build- capacities as members their official Contractors, Inc., Amici Rights Curi- ers Human Com- mission, Defendants-Appellants, ae. affording any him reason- knowledge allow mination without
only had sufficient to that he past pay understand his due the overdue amounts. opportunity him to calculate and able point to record amounts. It does not support deficiency alone would suffice to That told, Lopez was ever at the evidence that Mr. the union violat- the NLRB's conclusion that otherwise, hiring that he was enti- time of 8(b)(1)(A) on November ed Section period pay these over- tled to reasonable (b)(2) 8(b)(1)(A) and on November Sections Meanwhile, both November 1 due dues. on 724; Grass, NLRB at Team- 14. See Blue purported to claim the the union NLRB at 1042. Union No. sters Local authority Lopez's immediate ter- to seek Mr. *2 08-6127, 08-6128. Nos. Appeals, States Court of
United
Tenth Circuit.
Feb. *7 Change
filed an Amicus brief for Curiae Win, support of Appellees. Guttentag Chang Lucas and Jennifer Newell, America Liberties Civil Union Foundation, Immigrants’ Rights Project, Francisco, CA, Jadwat, San Omar Ameri- Foundation, can Civil Liberties Union Im- York, migrants’ NY, Rights Project, New Tauber, Mayer LLP, Andrew Brown DC, Washington, Joaquin, and Linton Kar- Tumlin, Preciado, en C. A. and Nora Na- Center, Immigration tional Ange- Law Los les, CA, filed an Amici Curiae brief for American Union Civil Liberties and Na- Center, tional Immigration Law in support Weitman, Assistant Attorney M. Daniel of Appellees. (Kevin McClure, General L. Assistant At- General, Rinehart, torney Sandra D. and Srinivasan, Walter Dellinger, Sri and General, with him on Attorney Senior Florence, O’Melveny LLP, Justin & Myers briefs), Oklahoma General’s Of- Washington, DC, filed Amici Curiae fice, OK, for City, Defendants- brief for The Arizona Chamber of Com- Appellants Rights and Human Edmondson merce Industry, and The Colorado Associ- Commissioners. ation of Industry, Commerce and The Illi- Hurst, Guy Commerce, L. Assistant Coun- nois Chamber of The Indiana sel, Commission, Commerce, Oklahoma Tax Oklahoma Chamber of The Kansas OK, City, Defendants-Appellants for Tax Commerce, Chamber of The Kentucky Commissioners. Commerce, Chamber of The Missouri Industry, Chamber of and Commerce The (Eric A. Phillips Shumsky, Carter G. Commerce, New Jersey Chamber The Parker, Nelson; A. Brian E. Robert Pennsylvania Chamber Business and Brennan, and Robin S. Conrad Shane Industry, The Tennessee Chamber of Litigation Center, Inc., National Chamber Industry, Commerce Texas Asso- briefs), with him Sidley on the Austin Business, ciation of The Association of DC, LLP, Washington, Plaintiffs-Ap- Business, Washington and the Virgi- West pellees. *8 Commerce, nia in support Chamber of of Pace, David A. Selden and Julie A. Bal- Appellees. LLP, Spahr Ingersoll, lard & Andrews Phoenix, AZ, Rublin, and Burt M. Ballard Kevin Fong M. and Brian J. Wong, LLP, Spahr Ingersoll, Andrews & Phila- Pillsbury LLP, Winthrop Shaw Pittman PA, delphia, filed an Amici Curiae brief for and Robert Nira Geevargis, Rubin and The Human Initiative For a Resource Le- Lawyers’ Rights Committee for Civil of gal Workforce and Associated Builders Area, the San Bay Francisco San Francis- Contractors, and Inc. co, CA, Amici filed an Curiae brief for Lawyers’ Counsel, Rights
Patrick
Committee for Civil
Szymanski,
J.
Area,
al.,
Win,
West,
Bay
M.
the San
et
Change to
and John
Bred-
Francisco
P.L.L.C.,
Kaiser,
D.C.,
Washington,
support Appellees.
hoff &
granted
prelim-
and
KELLY, LUCERO,
motions to dismiss
and
Before
defendants,
HARTZ,
inary injunction. All
save the
Judges.
Circuit
Governor, appeal.
LUCERO,
Judge.
Circuit
issues that were
Faced with the same
Taxpayer and Citizen
The Oklahoma
(1)
court,
the district
we conclude:
before
(the “Act” or the
Act of 2007
Protection
(2)
standing;
have
that the
the Chambers
Act”)
of a multitude of
is one
“Oklahoma
precludes
Amendment
the case
Eleventh
regulate
that
ille-
enactments
recent state
only
Attorney
as the
General is
insofar
employ-
immigration and verification
gal
challenge
a defendant in the
named as
implicates
This case
eligibility.
ment
(3)
7(C)
9; and
the district
Sections
and
7(B)
of the Act. Section
provisions
three
jurisdiction
properly
court
exercised
over
Pilot
to utilize the Basic
forces businesses
challenge
the Chambers’
Section We
authorization
Program verify
the work
likely
are
further hold that the Chambers
employees
pain
on
of debar-
status of their
merits of their claims
to succeed on the
contracting
ment
from
with Oklahoma
7(C)
expressly preempted
that
is
Section
7(C) makes it a
employers. Section
public
impliedly preempted.
9 is
and
Section
an
discriminatory practice
employer
Moreover,
fa-
remaining
considerations
worker while re-
terminate an authorized
preliminary injunction.
of a
vor issuance
employee
employer
taining
reasonably should know is unau-
knows or
differs,
Although
reasoning
my
their
col-
requires
con-
thorized to work. Section
leagues
the district court erred in
conclude
verify
the work
tracting entities either
7(B)
its determination that Section
eligibility
of their individual
panel
thus the
reverses
preempted, and
from
contractors or withhold certain taxes
grant
preliminary
district court’s
of a
Otherwise,
the con-
those contractors.
injunction against the enforcement
Sec-
entity is liable to the State for the
tracting
7(B).
judgment
I
tion
dissent from
money not withheld.
the court on this issue and would hold
Plaintiffs,
impliedly preempted
of com-
various chambers
injunc-
a preliminary
that the issuance of
(“plaintiffs”
and trade associations
merce
“Chambers”),
Accordingly, this
challenged
appropriate.
tion was
or the
Sections
7(C),
7(B),
They
opinion
except
Act.
claimed
is that of the court
and 9 of the
expressly
respect
that all three sections were
to sections V.B.2 and V.B.4.
law and
impliedly preempted
jurisdiction under the collateral
We have
injunction
preliminary
moved for a
to bar
the district
order doctrine to consider
Governor,
General,
Oklahoma’s
Eleventh Amendment im-
court’s denial of
Commission, and
Rights
Human
Tax Com- munity,
Aqueduct
P.R.
& Sewer Auth. v.
(collectively
mission
“defendants”
Inc.,
139, 147,
Eddy,
&
506 U.S.
Metcalf
“Oklahoma”)
chal-
enforcing
(1993),
684,
Section 9. The district court denied (a) deny employment that of the to aliens who regime and Okla- are verification lawfully States, in present not the United by outlining these begin Act. We homa (b) lawfully or not authorized are to work systems. potentially-conflicting Plastic, in the United States.” Hoffman (citations 147, 535 U.S. S.Ct. 1275 A omitted). system, Known as the 1-9 em- Immigration Re- in Enacted ployers required verify identity are (“IRCA”) “a Act created form and Control employees they of their and ensure are prohibiting the em- comprehensive scheme eligible to work in the by United States illegal aliens the United ployment examining specified certain documents. 8 Compounds, Plastic States.” Hoffman 274a.2(b). § C.F.R. IRCA establishes a NLRB, 122 S.Ct. Inc. v. 535 U.S. documents, permissible list verification (2002). 152 L.Ed.2d enabling employees prove eligibility by 101(a)(1) it “unlawful for a of IRCA makes supplying any document on the list. 8 ... ... for entity or other to hire person 1324a(b)(l)(A)-(b)(l)(D). § U.S.C. An em- an alien in the United States employment ployee who submits verification documents the alien is an unauthorized knowing “reasonably that appear[] on face [their] (a)(1)(A). 1324a(a)(l), § U.S.C. alien.” 8 may genuine” required to be not be an An alien” is defined as “unauthorized produce different or additional documents (A) not at that time either “alien [who] requests by employers if such are made permanent for resi- lawfully ... admitted for the or with the purpose intent of dis- (B) dence, employed to be so or authorized 1324a(b)(1)(A) criminating. (ii), §§ or General.” [IRCA] 1324b(a)(6). Federal law further defines 1324a(h)(3). § verify the class of individuals who must exhaustively spe- details a Federal law employment eligibility, requiring verifica- administrative scheme for deter- cialized employees tion for but not for knowing- has mining employer whether 1324a(a)(l)(A); § contractors. See ly an unauthorized alien.1 employed 274a.l(f) § (excluding “independent C.F.R. 1324a(e). § employer An does so is “employ- contractor” from the definition of subject range to a of civil and criminal ee”); 274a.l(g) (employers responsi- § fines, 1324a(e)(4), penalties, including § verifying ble for work authorization of in- orders, id., imprison- cease and desist contractors). dependent 1324a(f)(l). ment, § Consistent with its Congress opted to create a substantial nature, IRCA includes an comprehensive employers comply safe harbor provi- “The express preemption provision: system. 1-9 8 U.S.C. preempt any sions of this section State or 1324a(b)(6)(A). § an employer Unless civil or criminal sanc- imposing local law violating persists being put IRCA after (other through licensing than tions noncompliance engages on notice of its or laws) upon employ, or similar those who violations, pattern practice in a employment, recruit or refer for a fee for 1324a(b)(6)(B), (C), employers § at- who 1324a(h)(2). unauthorized aliens.” comply good faith tempt protect- are penalties IRCA also establishes an “extensive ed from civil and criminal under 1324a(b)(6)(A). law, system,’ ‘employment designed verification 1324a(a)(l); Although parties varying use terminolo- 8 U.S.C. Okla. Stat. tit gy, 1312(4), because both federal law and the Okla- employ phrase. we alien,” homa Act use the term “unauthorized *10 against information is checked U.S. system was the exclusive em mitted The 1-9 Citizenship Immigration under Services procedure verification ployment (“USCIS”) Illegal of the Im passage law until records. federal Respon Immigrant Reform and migration contrast, employee information By when (“IIRIRA”). Chicanos sibility Act of 1996 Secu- is inconsistent with either the Social Causa, Napolitano, Inc. v. Por La databases, rity employer the USCIS Cir.2009). (9th 856, enacting F.3d “A receives a tentative nonconfirmation. IIRIRA, Attorney the Congress “directed ... tentative nonconfirmation does not pilot programs three General to establish that not authorized employee mean is and accurate verifica to ensure efficient work, may interpret employers for employee’s eligibility tion of new Programs Employ- it as Pilot such.” Id.; IIRIRA, see Pub.L. employment.” Confirmation, Eligibility Fed.Reg. ment 401(a), 104-208, C, § div. Stat. No. 1997) 48,309, 48,312 15, (Sep. [hereinafter (1996).2 3009-546, Of those 3009-655 Rather, Programs]. Pilot because federal three, Program Pilot rem only the Basic inaccurate, may employee records be ains.3 nonconfirmation is notified of the tentative pro the 1-9 verification paper Unlike workdays eight and has federal to contest cess, sys Basic Pilot is an internet-based challenge is be- the result.4 Id. While employment tem of authorization verification. resolved, ing employer may not take Causa, Chi Por La 558 F.3d at canos against employee. action Id. adverse employer seeking participate 862. An 48,310. employee at An not con- who does in Basic Pilot must enter Memorandum test the tentative nonconfirmation or is Understanding govern with the federal ineligible found must be otherwise to work E-Verify ment. Memorandum of Under employment terminated from lest the em- http://www.usds. standing, available at ployer presumed employed to have an be gov/files/nativedocuments/MOU.pdf. Un 48,313. unauthorized alien. Id. program, employer der the submits em voluntary Basic Pilot is a alternative to ployee electronically information to the system employers. the 1-9 for most Ex- government, federal which then checks the pansion Program of the Basic Pilot to All against containing information a database Columbia; 50 States and the District of citizenship and work authorization infor Access, Providing Fed.Reg. Web-Based If mation. the information submitted (Dec. 2004). 75,997, 75,998 20, IIRIRA employer Security matches the Social explains “any person entity that or other citi employee database and the is U.S. zen, any hiring may ... elect to immediately conducts employer notified employee eligible participate pilot program. Except that the to work in the noncitizens, (e), specifically provided in subsection United States. For the sub IIRIRA, gov- initially gave responsi- 2. Sections 401 to 405 of which Pilot, bility Department pilot programs, ern codified for Basic are not body appear Security it. of the U.S.Code but in a note Homeland now administers See Program Expan- appended to 8 Basic Pilot U.S.C. 1324a. Extension 108-156, 3-4, §§ Act sion Pub.L. No. commonly 3. Basic Pilot is also referred to as 117 Stat. 1944-45. E-Verify. Congress recently extended Basic Congress through September Depart- report Pilot 2012. 4. An executive branch employees Security Appropriations have ten ment of Homeland record indicates Act, 2010, 111-83, v, workdays to contest a tentative non- Pub.L. No. title Although confirmation. 123 Stat. the statute *11 101; Security, any § Consolidated Disaster As- may require not Attorney General sistance, Continuing Appropriations in and entity participate or other person 110-329, 402(a)5; Act, 2009, Pub.L. No. IIRIRA see pilot program.” (2008); 402(d)(2) (“The 3574, 3580 Basic Pilot Exten- Attorney General Stat. also 107-128, 2,§ Act of Pub.L. No. process election sion widely publicize the shall (2002). 2407, 2407 the volun- 115 Stat. including pilot programs, and ”). pilot programs.... of the tary nature B Pilot is indicates that Basic
The record mind, we turn to to the this federal law report A 2007 With perfect. far from Pro- Security Taxpayer the Oklahoma and Citizen of Homeland Department (“DHS”) Act of 2007. The Act reflects Okla- that “the database used for tection found judgment “illegal immigration homa’s sufficiently up is still verification causing hardship economic and lawless- requirement IIRIRA meet the date to Westat, Taxpayer in this state.” Oklahoma Findings ness verification.” accurate xxi Protection Act of Evaluation and Citizen Basic Pilot of the Web Serv., 112, § Law. (2007). an error Okla. Sess. Ch. report That documented (West). The Act states that unauthorized for naturalized approximately 10% rate of and sheltered” citizens, foreign-born aliens have been “harbored and calculated and issued “identification to work eligible who are individuals verifying immigration ... without likely cards were 30 times United States “impede actions nonconfir- status.” Id. These and an erroneous tentative receive immi- at obstruct the enforcement of federal employees. Id. mation as U.S.-born law, gration security undermine the of our “improve- further that xxv. It concluded borders, needed, impermissibly if and restrict especially the Web ments are privileges national and immunities of citizens a mandated Basic Pilot becomes illegal im- xxi, correcting “Discouraging] Oklahoma.” Id. but that program,” id. employment of migration” preventing time and “will take considerable problems purposes are avowed of the illegal collection and aliens require better data and will at issue in this case. Id. Security], provisions three sharing between [Social data USCIS, Department of State and the U.S. Act, Stat. tit. Section of the Okla. case,” at xxvi. currently the id. than is 1313(B)(2),provides that no contrac- may Pi- or subcontractor contract or sub- of Basic tor
Through several extensions public employer unless lot, opted pro- to retain the contract with Congress has System E.g., utilizes the Status Verification voluntary character. Omni- gram’s (“SVS”)6 J, verify eligibility for all div. work Appropriations Act of bus 1324a, U.S.C., 403(a); 402(e) oper- Section particular federal 5. Subsection lists required utilize Basic government Department entities ated the United States Pilot, Secretary of Home- and authorizes the Security, the Basic Homeland known as Security certain violators of the land to order Program, Pilot Immigration Nationality Act to use the designat- any equivalent program b. federal 402(e). program. § Department of ed the United States Security other Homeland defines Status Verifica- 6. Section 6 of Act eligi- verify agency authorized to the work System as: tion employees, pur- bility newly hired status of author- electronic verification of work a. Immigration Reform and Con- to the suant Immigration Illegal program of the ization 99-603, (IRCA),D.L. trol Act of 1986 Responsibility Immigration Act Reform 104-208, C, 1996, P.L. Division *12 criminatory subject to investi- undisputed practice it is employees. Because new partici- of the four methods of by Rights three the Oklahoma Human gation exist, in the SVS either do not pating (“HRC”), 1502; temporary § Commission 1312(l)(b), (c), require § or would misuse injunctive by relief issued an Oklahoma 1312(l)(d), § Act program, a HRC, 1502.1; § request court at the of the Pilot, effectively mandates Basic orders, 1505(B); § and cease-and-desist 1312(l)(a). 7(B), Thus, a § under Section reinstatement, relief, including affirmative or subcontractor who verifies contractor fees, attorneys’ and pay, back costs through system the 1-9 cannot obtain cer- 1505(C). employer § An Basic uses tain state contracts.7 Pilot, however, “exempt liability, from 7(C) Act it a “dis- Section of the makes 7(C)’s investigation, or suit” under Section criminatory practice” any employer for to 1313(C)(2). § safe harbor. “discharge employee working an Okla- Act, 9 of the unlike federal ver- Section homa is a United States citizen or who law, requires ification all businesses to permanent retaining resident alien while ... verify obtain “documentation to inde- entity employee employing an who the pendent employment au- contractor^’] knows, known, reasonably or should have 1313(C)(1).8 thorization.” tit. Okla. Stat. § is an unauthorized alien.” § employer engages independent An who in such a dis- 2385.32.9 If an contractor full, 7(C) any independent, third-party system c. other 8. In Section states: higher degree reliability equal an or discriminatory practice 1. It be a shall programs, systems, processes as the or de- employing entity discharge an to an em- paragraph, scribed in this or ployee working in a Oklahoma who is Unit- Security d. the Social Number Verification permanent ed citizen or States resident Service, or such similar online verification retaining employee alien while who the process implemented by the United States knows, employing entity reasonably Security Administration[.] Social known, should have is an unauthorized 1312(l)(a)-(d). § 1, 2008, July alien hired after and who is working job category in Oklahoma in a full, 7(B) provides: 7. In Section skill, effort, requires equal responsibili- and 1, 2008, July public employer 1. After no ty, performed and which is under similar physical shall enter into a for the contract conditions, working as defined 29 U.S.C. performance of services within this state 206(d)(1), job § category held registers partici- unless the contractor discharged employee. pates System in the Status Verification to which, employing entity 2. An on the date of verify eligibility the work status of all new discharge question, currently was employees. enrolled in and used Status Verification 1, 2008, July 2. After no contractor or sub- System verify employment eligibility contractor who enters into a contract with employees in of its Oklahoma hired after public employer shall enter into such a 1, 2008, July exempt liability, shall be from contract or subcontract connection with investigation, arising any or suit from ac- physical performance of services within tion under this section. this state unless the contractor or subcon- 3. No cause of action for violation of this registers participates in the tractor Sta- anywhere shall arise in Okla- subsection System verily tus Verification informa- provisions homa law but of this employees. tion of all new subsection. provisions 3. The of this subsection shall not 1313(C). apply prior contracts entered into date effective of this section even provides: entirely, 9. its though may such contracts involve contractor, physical performance of services within this A. an individual If July performance contracting physical state after for the state, 1313(B) (footnote omitted). provide services in this fails to to the 1324a(h)(2). They sought both declara- eligible that she is proof provide does defendants, entity tory injunctive must with- relief from work, contracting equal Henry, in an amount Brad Okla- Governor compensation Oklahoma hold tax rate” al- income Drew top marginal Attorney General W.A. “the homa 2385.32(A). law. Edmondson, lowed under of the Okla- the members *13 in general the rule to exception is an HRC, This members of the Okla- homa and the contracting enti- Oklahoma, which under Commission, in their Tax all sued homa to withhold taxes required ties are capacities.10 official contractors. from immediately moved for a The Chambers (C). 1701.1(A), Contracting entities injunction, and defendants preliminary withholding with this comply fail to that Denying all motions to dismiss.11 moved to the state are liable requirement dismiss, pre- the district court issued to 2385.32(B). withholding shortfall. injunction prohibiting enforce- liminary C rejected of the Act. It defendants’ ment In- sovereign immunity, and Tax standing, state, national, and various Plaintiffs are to junction arguments. respect Act With trade as- of commerce and chambers local merits, the court concluded that in businesses represent sociations likely substantially were to suc- Chambers a com- filed The Chambers Oklahoma. claim express preemption on their as ceed Court for the West- in District plaint U.S. Act challenged to all three sections alleging Sec- District of Oklahoma ern imposed civil sanc- those sections because 7(C), Act 7(B), 9 of the Oklahoma and tions in contravention of 8 U.S.C. tions impliedly preempted expressly were 1324a(h)(2).12 court further deter- thus unconstitutional law and by federal in- remaining preliminary mined that See U.S. Clause. Supremacy under the Const, All defen- 2; junction factors were satisfied. VI, 8 U.S.C. cl. art. Nothing intended to verify in this section is contracting entity to C. documentation create, creating, as or should be construed employment independent contractor’s relationship employer-employee between authorization, pursuant prohibition to contracting entity and an individual inde- alien labor against the use of unauthorized pendent contractor. through set forth in 8 U.S.C. contract § 2385.32. 1324a(a)(4), contracting entity shall state income tax required to withhold be Commission” as We use "HRC” and "Tax 10. provid- tax as top marginal income rate shorthand, recognizing that the lawsuit is 68 of the Okla- 2355 of Title ed in Section against the members of those commissions applied compensation as to homa Statutes capacities. their official performance for the paid to such individual which within this state of such services complaint, the Cham- 11. As outlined in the compensa- exceeds the minimum amount requested and Attor- that the Governor bers entity required contracting tion enjoined enforcing ney from Sec- General be United States Internal report as income on 9; 7(B), 7(C), and the HRC be tions Service Form 1099. Revenue 7(C); enforcing enjoined Section from contracting entity Any who fails com-
B. enjoined Commission be that the Tax withholding requirements of ply with the enforcing 9. the taxes shall be liable for this subsection 7(B), that Sections required been withheld unless such Because it concluded to have 7(C), likely expressly preempted, exempt contracting entity from federal and 9 were Cham- did not consider the withholding respect to such individual the district court arguments sections that these properly Internal Reve- bers' alternative pursuant filed preempted. equivalent. were either field or conflict or its Form 8233 nue Service “(a) dants, Henry, standing only filed this association has such if: except Governor interlocutory timely appeal. its members would otherwise have stand- (b) ing right; to sue their own
II
protect
germane
interests
seeks
are
(c)
must,
begin,
organization’s purpose;
we
consider
to the
nei-
We
issues, turning
ing jurisdictional
first
ther the claim asserted nor the relief re-
challenge
standing
quested requires
participation
the Chambers’
Sec
of indi-
7(B), 7(C),
tions
and 9 of the Oklahoma
vidual members
the lawsuit.” Id. at
Act.13Article III of the Constitution limits
challenge
well as actual or
that the
agree on both counts.
sections;
challenged
was caused
requested
likely
and that the
relief would
compliance
non-compli
Both
and
Summers,
alleged injuries.
redress their
7(B) injure
ance with Section
the Cham
1149; Dias,
129
S.Ct.
Lastly, we of Oklahoma’s standing that the Chambers lack argument Having concluded that Chambers challenge they have because challenge, mount their possess standing to injury-in-fact. comply To allege failed to jurisdictional alleged turn to second we section, entity must contracting with that defendants, According defect. verify indi eligibility the work of its either Attorney immune from un- General is suit or with independent vidual contractors18 the Eleventh Amendment to all der as hold from the contractors challenged of the three sections equal top marginal income amount Act.20The Chambers advance counter-ar- 2385.32(A). 68, § tit. tax rate. Okla. Stat. to the General’s claim of guments requirements verification Because federal immunity only Sections (and limited do not ex employees are 7(C), but as to Section Plaintiffs contractors), see *17 independent tend to response have therefore waived to the 1324a(a)(l)(A); § C.F.R. U.S.C. 8 Attorney that 274a.l(f), contention General opt § that for the (g), businesses respect immune from suit with Section to potentially are ex- approach verification to under law for posed liability federal 9. "know[], they reasonably have that the Chambers should 19. Oklahoma also asserts known,” standing challenge lack Section 9 as to they retained an unauthorized Attorney against either or the General terminating an worker. alien while authorized HRC, complaint naming we but read as 25, 1313(C)(1) (emphasis Okla. Stat. tit. only Tax as the Governor and Commission added). challenge See defendants Section 9. supra 11. note Specifically, statutory language re-
18. quires employer "documenta- receive has that its members are 20. HRC conceded verify contractor’s tion 7(C), respect immune with Section employment Stat. tit. authorization.” Okla. 14, 20), (Attorney Tax Br. has the General’s 68, 2385.32(A). brevity, we For the sake of 9, (Tax respect with to Section Commission obligation as refer to this verification. 4). supra 11. Commission’s Br. See note 760 redressable, II.A, supra, de novo the denial of Part we conclude
We review
Attorney
particular
a motion to dismiss based on Eleventh
that the
General has a
immunity.
section,
duty
v.
Amendment
Kansas
to enforce that
see Okla. Stat.
Chaffin
Bd.,
850,
(10th
74,
18b(A)(3), (7),
State Fair
F.3d
865
tit.
a
348
demonstrat-
Cir.2003).
see,
willingness
duty,
Under
Eleventh Amend
ed
to exercise
ment,
Colclazier,
624;
generally
e.g.,
states are
immune from
at
Cemetery
951 P.2d
Co.,
brought
by
court
their
122
suits
own
P.3d at
He is
a
481-82.
therefore
citizens,
states,
of other
by proper
citizens
defendant
the Chambers’
Sec-
foreign
Indian
sovereigns,
Wagnon,
tribes.
tion
claim. See
476 F.3d at
Const,
XI;
See
amend.
U.S.
Prairie Band
Wagnon,
Potawatomi Nation
476 F.3d
the opposite
We reach
conclusion
Cir.2007).
(10th
818,
However,
7(C)
regard
to Section
because the
not apply
Eleventh Amendment does
to any
Chambers do not cite
Oklahoma law
against
officer in
suits
a state
his official
Attorney
authorizing the
General to en
capacity
only prospective
seeking
relief.
provision.
force that
A violation of Section
Jordan,
651, 667-68,
Edelman v.
U.S.
7(C)
“discriminatory prac
constitutes a
1347,
(1974);
94 S.Ct.
willingness duty.” Wag to exercise Young exception. non, 476 828 (citing parte F.3d at Ex immunity is thus entitled to as to that 441); Young, 209 U.S. S.Ct. see Noel, challenge. See Shell Oil Co. v. Crutcher, also Finstuen v. 496 F.3d (1st Cir.1979) (merely F.2d be (10th Cir.2007) (“So long as there is cause “an attorney general duty has connection enforcement [some] [with of the prosecute all in which actions the state is act], necessary it is not that the officer’s *18 enough interested him [is not] make a enforcement be noted in duties the act.” proper every defendant such action” omitted)). (quotation Because the defen (citation omitted)). dants are sued in their official capacities only and the seek prospective Chambers IV relief, disputes solely Oklahoma the con yet ju Oklahoma raises another nection between the General and It challenge: risdictional claims that challenged enforcement of the sections. (the Injunction “TIA”), Tax Act 28 U.S.C. 1341, For reasons deprived juris the same we conclud the district court of enjoin ed that injury the claimed Section is diction to 9. Because Section
761
“sweeping
not
congressional
TIA is
a
subject
jurisdic
matter
implicates the
TIA
prevent
federal-court interfer
courts,
ap
its
direction
we consider
of federal
tion
all
of state tax adminis
aspects
ence with
Kan.
v.
novo. See Marcus
plicability de
Winn,
88, 105,
Hibbs
542 U.S.
tration.”
v.
1305,
Revenue, 170 F.3d
1308-09
Dept. of
(2004)
2276,
L.Ed.2d
124
159
172
S.Ct.
Cir.1999).
(10th
that
argues
omitted).
(quotation
tax,
revenue-producing
9
a
imposes
Section
jurisdic-
are
courts
without
which federal
be
that
generally
It can
said
9
enjoin.
conclude that Section
tion to
We
its
is
purpose
is a tax when
an assessment
tax,
its
not a
because
a
imposes
penalty,
revenue,
“while levies assessed
to raise
than
rather
regulate
is
conduct
purpose
purposes, even
punitive
or
regulatory
reject
Accordingly, we
to raise revenue.
revenues,
raise
are
though they may also
contention,
”
TIA
Oklahoma’s
Ins.
not ‘taxes.’ Travelers
Co.
generally
(2d Cir.1994)
Cuomo,
708,
14
713
v.
F.3d
A
omitted),
rerid
(quotation
on
other
TIA
“The
provides:
entirety,
In its
N.Y.
Blue
grounds,
State Conference of
enjoin, suspend
shall
district courts
v.
& Blue
Plans
Travelers
Cross
Shield
assessment, levy or collection
restrain
Co.,
645,
1671,
514
115 S.Ct.
131
Ins.
U.S.
plain,
law
a
where
tax under State
(1995).
deciding
695
whether
L.Ed.2d
had
remedy may be
speedy and efficient
tax,
imposes
9
a
the touchstone of
Section
There
§ 1341.
courts of such State.”
inquiry
purpose
our
the assess
remedy ex-
a
dispute
no
sufficient
1236,
Kemp, 478
ment. See Hill v.
F.3d
Accordingly,
court.
in Oklahoma state
ists
(10th Cir.2007). In judging pur
1244-45
if the assessment
only
we need
decide
consider, among
things,
other
pose, we
9 is a tax within
by
imposed
1245;
Id. at
ultimate use of the funds.
Marcus,
F.3d at
meaning
170
1341.
Marcus,
(citing
170
at 1311
Collins
F.3d
is a
question
n. 4.
answer
1312
The
County,
Holding Corp.
Jasper
v.
123 F.3d
law;
whether the state
matter
(4th
797,
Cir.1997); Hager
City
v.
800
disposi-
a tax is not
labels
assessment
(7th
Peoria,
870-71
Cir.
W.
F.3d
tive. Id. at 1311.
1996);
Tel.
Pub.
San Juan Cellular
Co. v.
P.R.,
967 F.2d
Serv. Comm’n of
TIA is
purpose
of the
Cir.1992)).
(1st
Yet, other evidence of
protect
It serves to
straightforward:
pur
such
the statute’s avowed
purpose,
by permitting states
“federal balance”
in its text as well as the
pose as stated
laws
elaborate their own
“define and
levy, are
incentive structure created
courts
administra
through their own
also relevant. RTC Commercial Assets
... without
interfer
processes
tive
undue
In
Trust
v. Phoenix Bond &
1995-NP3-1
Judiciary.” Arkan
ence from the Federal
(7th
Co.,
Cir.1999);
dem.
F.3d
Ark.,
Servs.
Cent.
sas
Farm Credit
Of
Hager,
dedicated fund
used
the
label
for.
character,
program
dispositive”
tration of
at
Id. If that
is not
its
charge
the
issue.
of
Marcus,
a positive
fund
balance at the
170
contained
F.3d at
neither is the
year,
end of
the
be
the
balance would
use of
of an
dispositive
ultimate
funds
the
Id. Al-
general
transferred to
fund.
purpose,
84
at
Hager,
assessment’s
F.3d
unclear
how the
though
exactly
it was
As our sibling
870-71.
circuit has ex-
used,
portion
other
of the assessment was
regardless
plained,
of the ultimate use of
im-
charge
the
mandated that the
statute
funds,
“may
a non-tax assessment
[also]
posed
placards
not ex-
parking
for
“shall
regulatory purposes directly by
serve
...
ceed
cost of
Kan.
the actual
issuance.”
deliberately discouraging particular con-
8-1,125(c). Thus,
§Ann.
the entire
Stat.
by making
duct
it
expensive.”
more
San
“expressly
defraying
charge
linked to
was
Juan,
(citing
967 F.2d at
South
Car-
Marcus,
costs.”
administrative
F.3d
Block,
olina
rel.
ex
Tindal
F.2d
expressly
at
it
tied to
1312. Because was
(4th Cir.1983)).
recog-
Our decisions
regu-
specific
the administrative costs of a
nize as much. The
plate charges
license
at
scheme,
latory
we determined that “the
Hill,
issue in
for
not
example,
“purport
did
of
purpose
dominant
these funds [was not]
anyone
to ‘regulate’
by incentivizing or
Rather,
raising.” Id.
revenue
the assess-
disincentivizing certain
forms
conduct.”
ment’s
was
Id. It
purpose
regulatory.
1246;
Marcus,
F.3d
see also
therefore
a regulatory
constituted
fee
(citing
F.3d at 1311
F.3d at
Hager, 84
870-
scope
rather than a tax and fell
the
outside
71). Thus,
question solely
than a
“[r]ather
of the TIA. Id.
money
the
goes,
why
where
the issue is
money is
Hager,
taken.”
84 F.3d at
Hill,
employed
In
analysis
we
a similar
Hill,
870-71.
Marcus and
where the
in reaching
opposite
conclusion. 478
money
strong
why
went was
evidence of
F.3d at 1244-46. At
issue
that case
Hill,
money
was taken.
478 F.3d at
imposed
were charges
by Oklahoma for
Marcus,
1244-46;
But use is not conclu logically part was tax itself be- of purpose. sive evidence solely “[t]he Just cause it was meant to account for *20 2385.32(A). result- Section 9 creates an incen- government’s opportunity cost the that, receiving pain on of financial delay in the funds. tive structure ing from the assessment, encourages employers veri- to Id. the fy employment authorization of their Hager, Seventh Circuit Similarly, in the It a independent imposes contractors. that was ear- an assessment addressed contracting on that do not penalty entities fund, city a fact general marked for a verify eligibility or from withhold taxes levy’s that the ulti- superficially suggesting contractors, their purpose mate was to raise revenue. 2385.32(B), thereby “deliberately dis- beyond at But the court looked F.3d 870. couraging particular making conduct funds, concluding the instead the use of Juan, expensive,” San 967 F.2d at more was, ordinances at issue that the fee the 685; Commercial, see at 457 RTC F.3d avowedly designed regulate proclaimed, (“States the penalties do not assess city Id. weight using trucks streets. the of ”). in raising of revenue.... As purpose the analysis court’s turned on at 871. The Commercial, Oklahoma a imposes RTC of as articu- purpose the assessment stated [contracting penalty delinquent “so that ordinance, in admis- the text the lated entities] will be deterred next time implemen- about city’s mayor sions their ignoring legal around from obli- tation, operation levy of the in the and the F.3d at 457. gations.” 169 laws. motor vehicle context of state’s up raised ended Although Id. revenue Moreover, expressed primary goal fund, general con- in a the Seventh Circuit regulate the Oklahoma Act is to behavior.21 rath- that the was a fee cluded assessment “discourage im- illegal Oklahoma means “That the than a tax. Id. at 870-72. er through verification of migration” work eli- which generate permit a fee ordinances gibility. Taxpayer and Citizen inci- general city only fund goes Protection Act of 2002 2. As the Okla- Id. at regulatory to its nature.” dental acknowledged homa below, the its motion to dismiss Act aims seeking from “discourag[e] illegal aliens B refuge [by] discouraging this state ... (At- hiring employers illegal con from aliens.” Applying principles, we these 24). torney Mot. the Oklahoma Act General’s to Dismiss As clude that Section tax, in Hager, regulatory penalty, not a ordinances at issue constitutes regulate purpose at of Section purpose its is to behavior F.3d stated because Hill, regulation, generation. rather than to revenue. See 9 is revenue raise Marcus, 1244-46; at mere at 170 F.3d fact revenue received 478 F.3d Commercial, 1311-12; up at violation ends RTC 169 F.3d of Section 9 Okla- 457-58; 870-72; general significance at fund of little Hager, 84 F.3d San homa’s Juan, against plain at its when measured the incentive By 967 F.2d 685-86. terms, created and the avowed statuto- “pursuant 9 was enacted structure (“That against ry purpose. use unautho See id. the ordi- prohibition generate permit goes fee which rized alien labor.” Stat. tit. nances Okla. however, 10.) Op. supra, partial we "im- discussed 21. The dissent asserts that As properly purpose key focus[ ] on motive for enactment an assessment is to our deter- not con- "[t]he of" Section 9 because TIA is penalty. whether it is a tax or a mination of why a its cerned with state chooses to collect Hill, See 478 F.3d 1244-45. (Dissenting particular taxes in a manner.” *21 764 general city only
the fund is the TIA not strip incidental does the district court of nature.”). its regulatory jurisdiction 9 challenge.24 over the Section response, Attorney In the re- that generalized
treats to the assertion V goal “the ultimate ensure statute’s is to collected, that regulate taxes are not to the jurisdiction, Satisfied of our we employment illegal (Attorney aliens.” of turn at last to the main course. order to 23). Notwithstanding General’s Br. that preliminary injunction, obtain a the Cham Attorney General was of a different “(1) show bers must a likelihood of success below, mind in (Attorney the court Gener- (2) merits; on the a likelihood that 24), pur- al’s Mot. to the primary Dismiss will irreparable movant suffer harm in the pose 9 of Section is not to ensure that (3) relief; of preliminary absence that the contrary, taxes are To the if a collected. equities of tips balance the movant’s entity contracting complies 9 with Section (4) favor; that injunction is in the by verifying employment authorization Attorney Gen. Okla. v. public interest.” contractors, of its independent Oklahoma Foods, Inc., (10th Tyson 565 F.3d 776 does not receive revenue. Okla. Stat. Cir.2009) omitted). (quotation We review 2385.32(A).22 68, § tit. Only if a contract- grant the district court’s of a preliminary ing entity violates Section 9 does the state injunction for abuse Pac. discretion. receive It credulity revenue. strains City, Frontier Pleasant Grove 414 F.3d argue that primary purpose a law is (10th Cir.2005). 1221, 1230-31 “A district to raise when compliance revenue with the court its abuses discretion when it commits RTC produces law See no revenue at all. an clearly error of law or makes erroneous Commercial, (“In F.3d at 457 a USA, Beltronics Inc. v. findings.” factual Utopian world all complied where citizens Distrib., LLC, Inventory at Midwest fully obligations, with their penalties no collected.”).23 (10th Cir.2009). 1067, 1070 all Accordingly, would be F.3d SVS); partial argues 1313(C)(2) 22. The § dissent that Section is the business less utilizes tax, special (providing "not some assessment but income a discriminatory safe harbor from 9-10.) pure simple.” (Dissenting Op. practice liability employers who utilize However, Pilot); Taxpayer that of the fact amount Basic Oklahoma and Citizen penalty (stating is set at the maximum level assessable Protection Act of 2002 that the of income tax the tax purpose "discourage illegal Oklahoma uses of the Act is to system to immigration” through collect revenue not trans- does verification immi- status). form penalty gration into a tax. primary purpose, To decide that The there- issue, fore, inquire pur- we must into the statute’s not pre- to raise because revenue here, pose; purpose compliance generate to ensure that form of ferred does not employers verify employment authoriza- revenue. employees. tion status of their slightly 24. Tax Commission has a differ- Admittedly, contracting may entity a also ent take than the General. The comply by withholding with Commission contends that Section 9 a creates equal top marginal amount "the may income of tax method collection not be tax enjoined rate” allowed under law. Oklahoma under the the TIA. terms of We need 68, 2385.32(A). Oída. Stat. tit. deprives But Section not address whether 9 and jurisdiction Act as a enjoin whole incentiv- district courts of tax, employment ize authorization verification method state chooses collect a how- See, ever, e.g., above all disagree premise else. Okla. Stat. tit. because we with the 1312(l)(a)-(d) (defining argument. Status Verification the Commission's Oklahoma is 1313(B)(2) "tax”; System); § (prohibiting collecting collecting penal- businesses it is public contracting employers ty designed regulate un- conduct. *22 or local law preempts “any IRCA State
A
(other
civil or criminal sanctions
imposing
pro
Supremacy
Clause
laws)
and similar
through licensing
than
laws of the United States
that the
vides
refer
employ,
who
or recruit or
upon those
Land[,]
of the
supreme
be the
Law
“shall
unauthorized
employment,
for a
for
fee
or
25
any
in the Constitution
Laws
Thing
...
1324a(h)(2) (empha-
§
aliens.”
8 U.S.C.
Contrary notwithstand-
to the
of
State
added).
that
Oklahoma contends
Sec-
sis
Const,
VI,
art.
cl. 2. Pursuant
ing.” U.S.
7(C)
impose
“sanctions” be-
tion
does
recog-
provision,
long
it has
been
to this
compensatory rather
provides
cause it
contrary
law preempts
that federal
nized
disagree.
We
solely punitive
than
relief.
v. Mary-
See
enactments.
M’Culloch
state
“sanction,”
not define
but
IRCA does
(4 Wheat.)
land,
316, 405-06, 4
17 U.S.
“a re-
ordinary
a sanction is
meaning,
its
(1819).
can
Preemption
be ei-
L.Ed. 579
punish
specific
to
a
strictive measure used
Hillsborough
express
implied.
or
ther
prevent
activity.”
future
action or to
some
Labs., Inc., 471
County v. Automated Med.
Dictionary
Int’l
2009
Webster’s Third New
2371,
707, 713,
105 S.Ct.
L.Ed.2d
U.S.
(1993). Moreover,
statutory context
(1985).
expressly
are
State laws
narrowly
to
de-
does not evince
intent
they
scope
when
fall within
preempted
requiring
punitive
fine
“sanction”
precluding
explicitly
provision
a federal
of
1324a(e)(4)(A)
Title
component.
Section
Alternatively,
id.
state
action. See
state
employ-
of
for
“penalties”
a series
outlines
preempted either as
may
impliedly
laws
be
aliens, ranging
hiring
ers
unauthorized
preemption.
or
conflict
field
a result of
$10,000.
from
Penalties are ordi-
$250
have
plaintiffs
conclude that
id. We
See
pur-
narily
serving punitive
understood as
strong
likelihood
Sec-
demonstrated
1324a(h)(2)
Yet,
§
in
Congress
poses.
7(C)
preempted and that
expressly
tion
is
than
the term “sanctions” rather
used
Although
preempted.
conflict
Section is
1324a(e)(4)(A).
§
in
“penalty” as
did
also hold
disagree, I would
my colleagues
only
Congress
preempt
Had
intended to
7(B)
preempted.
is conflict
that Section
punitive, we
those
laws that are
state
“penalties”
use
expected
would have
it to
1324a(h)(2).
§
it used “sanctions”
in
Had
1324a(e)(4),
§
reach a
might
in
we
similar
express
considering
pre
It did neither.
conclusion.
is
the state
inquiry
our
whether
emption,
7(C) subjects employers
scope
Section
at
falls within the
law
issue
reinstatement,
orders,
and desist
preemption provision. See Emer
cease
federal
costs,
Co.,
attorneys’
fees. Okla.
pay,
F.3d
back
City Ry.
son v. Kan.
S.
(C).
(10th Cir.2007).
1505(B),
imposi
Such
apply ordinary Stat. tit.
We
that fall
tions
“restrictive measures”
statutory interpretation,
look
are
principles of
meaning
“sanctions” as used
plain language of the within the
initially to the
ing
1324a(h)(2).
con
This conclusion is
Sprietsma
Mercury
statute.
federal
Marine,
51, 62-63,
use of the term “sanction”
123 S.Ct.
sistent with
537 U.S.
(2002).
An
law.
attor-
provisions
other
In
neither Section
“impos[e]
nor Section 9
civil or criminal
B
... upon
sanctions
who employ,
those
or
recruit
employment,
to express preemp
addition
refer for
fee for
tion,
unauthorized
Id. (emphasis
aliens.”
add
the Supremacy
prohibits
Clause
ed).
7(B)
Even
assuming
enacting
Sections
states from
laws that make com
impose
and 9
“sanctions” as that
is pliance
term
with both federal
law a
and state
1324a(h)(2),
imposition
used in
such physical impossibility
of
or that “stand[] as
sanctions is divorced from the employment
accomplishment
an obstacle to the
and ex
of
objectives
unauthorized aliens. Section
forces
of
purposes
ecution
the full
they
Congress.”26
contractors
use Basic Pilot if
seek
Fid.
&
Fed. Sav.
Loan
presence
express pre-
implied preemption principles.
26. Neither the
of an
traditional
Co.,
861,
emption provision
presence
v.
nor
sav-
Geier Am. Honda Motor
U.S.
1913,
869,
(2000).
ings
operation
clause
itself alters the
120 S.Ct.
ture of See IIRIRA 402(a) Election.”); (“Voluntary id. I would hold disturbs (“[A]ny ... person that conducts hir- conflicting goals balance between these ... ing pilot in a State in which program deliberately Congress.29 crafted en- ” may is operating participate elect to .... IRCA, IIRIRA, acting immigra- and other (“The added)); 402(d)(2) (emphasis [Sec- along tion way, Congress reforms has retary Security] of Homeland shall widely made judgments regarding calibrated sev- *25 publicize the election process pilot and competing eral Congress considerations. programs, including voluntary nature continually has employment concluded that ” pilot added)); of .... programs (emphasis verification required, should be but that (3)(A) (“The 402(d)(3), § [Secretary of system the 1-9 strikes the best balance Security] designate Homeland shall one or preventing between employment of unau- more ... persons individuals to inform workers, easing thorized on burdens em- and other entities that seek information ployers, preventing employment dis- pilot programs about voluntary na- crimination. ” programs ture of (emphasis such .... Yet, added)). Further, would make Basic Pilot Congress withheld effectively mandatory many for Secretary employers, from the of Homeland Security on pain of authority require public debarment con private employers 402(a) § tracts. utilize Basic Pilot. Because Oklahoma has (“Except as mandated specifically (e), despite Basic provided Congress’ Pilot determina subsection [Secretary tion Security] may employer of Homeland that participation not should be require any person entity voluntary, or par- likely other the Chambers can suc 402(e) ticipate pilot in a program.”); showing ceed in that Oklahoma has under (listing particular government federal Congress’ judgment enti- mined voluntary required ties to utilize Basic Pilot participation serves relevant best com authorizing Secretary peting of Homeland Se- considerations.30 Such interference 218, 1146, reject 29. request I Oklahoma's apply we U.S. S.Ct. 67 L.Ed. 91 1447 (1947)). against regulation immigration a presumption preemption. Federal As the clear, longstanding, regulation as is its of work Supreme au- has assump- Court made "an thorization verification. nonpre-emption triggered tion’ of is when regulates the State in an area where there has 8, 2009, September As of Executive Order history significant been pres- federal 12,989 requires government federal contrac- Locke, 89, ence." United States 529 U.S. tors to Pilot use Basic to confirm the immi- 1135, (2000) 120 S.Ct. 146 69 L.Ed.2d gration employees working of all status di- (citing Corp., Rice v. Santa Fe Elevator 331 rectly government on federal contracts and all
769 law], vio mentation of it is not enough [federal selected means would Congress’ with say goal that the ultimate of both Crosby, 530 feder- Supremacy late the Clause. al law is [the same].” and state Int’l Pa- 379, 120 at S.Ct. 2288. U.S. Co.,
per 479 at 107 U.S. S.Ct. 805. “A 3 pre-empted state law also is if it interferes with the methods which the federal conclude that Section simi We designed reach goal.” statute was carefully larly upsets Congress’ construct Id. with its by interfering chosen ed balance provision require That would
methods.
Supreme
Court’s decision in Geier
entities, on
contracting
pain
Co.,
of burdensome
Honda
v. American
Motor
529 U.S.
penalties, to
withholding requirements
S.Ct.
L.Ed.2d
in
verify
work authorization status of
(2000),
particularly
instructive.
In that
Congress, by
case,
contractors.
con
dependent
after
plaintiffs sued Honda
Alexis
trast,
intentionally
excluded
seriously injured in a
Geier was
car crash.
obligations.
They
contractors from verification
Id. at
Geier’s
implicates Section 9
Geier,
case.
529 U.S. at
well. Whereas Section
would restrict
S.Ct.
(“We
range
now conclude that
Congress
saving
choices
offered em-
(like
clause
ployers,
express pre-emption
obligations
provi-
Section 9 would create
sion) does not bar the
contracting
ordinary
on
Congress
working
entities that
ex-
conflict
pressly
pre-emption
impose.
principles.”).
chose not to
See 8
On the
U.S.C.
hand,
1324a(a)(l)(A);
one
274a.l(f),
because Oklahoma
8 C.F.R.
has
(g);
waived
any argument that
H.R.Rep.
99-682(1),
57;
Geier,
No.
its Act is a licensing
cf.
law,
other similar
1324a(h)(l);
lenges
9,
to Sections
and we turn to
remaining
preliminary injunction fac-
5
tors. To obtain a preliminary injunction,
Finally, Oklahoma’s reliance on Chica-
the Chambers must also demonstrate a
nos Por La
misplaced.
Causa is
In that
they
likelihood that
will suffer irreparable
case, the Ninth Circuit concluded that an
relief,
harm
preliminary
absent
that the
Arizona law requiring employers to use
equities
favor,
balance of
tips in their
Basic Pilot was
expressly preempted
not
injunction
that is in
public
interest.
because
it
fell within
8 U.S.C.
Foods, Inc.,
Tyson
771
perforce
by enjoining
served
la- will
be
monetary damages that cannot
tion of
provisions
invalid
sov-
enforcement of the
for reasons such as
ter
recovered
be
Guttau,
law.”
v.
190
irreparable
constitutes
state
Bank One
F.3d
ereign immunity
(8th Cir.1999);
Ass’n,
844,
see also
Inc. v.
Utah Li-
Health Care
Kan.
injury.
Leavitt,
Servs.,
Beverage
Rehab.
31 censed
Ass’n v.
F.3d
&
Dep’t
Kan.
Social
Cir.2001)
(10th
(10th Cir.1994);
1061,
(public
also
interest
see
F.3d
813, 814,
preliminarily enjoining state stat-
Conway, 279
favors
v.
U.S.
Ohio Oil Co.
unconstitutional).
(1929)
(holding
likely
utes
to be held
Oklahoma and relief, retrospective Edel- from suit for stated, we For the reasons DISMISS man, 667-68, 415 U.S. S.Ct. case from the insofar injuries cannot remed- financial be these as he is as a defendant in the named members de- ied. the Chambers’ Should 7(C) and challenges to 9. The Sections Act, they face comply cline with the summary judg- grant district court’s for consequences and other investigation against enforcement of Section ment discriminatory prac- in a having engaged In all other re- REVERSED. 7(C) liability under tice under Section of the district court is spects, judgment verify the having failed to Section 9 motion to AFFIRMED. Plaintiffs’ strike work contrac- authorization is GRANTED. face they tors. further note that I would under public contracts debarment KELLY, concurring Judge, Circuit *28 7(B). consequences, in and These Section part. themselves, of of demonstrate likelihood opinion Judge I concur in Lucero’s with irreparable harm. V(B)(2) (4) exception and con- parts the of 7(B) Moreover, is conflict equi cluding the of that Section balance Lucero, by Judge favor, preempted. the As noted ties in the and tips Chambers’ for different rea- by injunction. panel majority, the albeit public is served interest sons, grant the district court’s of have an in reverses does not interest injunction against the en- likely preliminary a law that is constitutional enforcing 7(B). My reasoning Moreover, forcement public “the interest of Section ly infirm. enjoin accepting jurisdiction Attorney had is as follows. Even federal to 25, enforcing General Okla. tit. regulation immigration and work-au from Stat. 1313(B) (Section 7(B) 1804). of H.B. In norm, thorization verification is now the view, my did not have Plaintiffs stand- government’s encouragement the federal ing bring against the Attor- their claim system of a to reduce the em web-based ney General. ployment of unauthorized aliens cannot be including requiring sys overlooked— recently Supreme As stated tem for contractors. See Fed. Court, (2008). 67,704 Reg. Though E-Verify is relief, a injunctive plaintiff To seek must (as voluntary level, yet) the national suffering show that he is threat of under it is not to assume that a man reasonable “injury in par- fact” that is concrete and datory for program public choice state ticularized; threat must be actual this Congressional contractors with conflicts imminent, conjectural and hypo- or view, purpose. my Congress obviously In thetical; fairly it must traceable to be potential
foresaw the increased use of defendant; challenged of the action Causa, technology. See Chicanos Por La likely and it must be a favorable Inc. v. Napolitano, F.3d 866-67 judicial prevent decision or will redress (9th Cir.2009). To hold that the State is injury. preempted requiring such use —Inst., Summers v. Earth Island U.S. these reads too much circumstances into -, 1142, 1149, S.Ct. 173 L.Ed.2d government’s provision the federal (2009). missing in What is this case is that all, choice. After choice is not an end in they the Plaintiffs not shown that have itself and suggests no evidence that feder inju- face an actual and imminent threat of al concerning immigration standards and ry Attorney traceable to actions employment-verification will be compro 1313(B). regard General with by E-Verify. mised Section as follows: states 1. July public After no em- HARTZ, Judge, concurring Circuit and ployer shall into a contract enter for the dissenting: physical performance services within My thoughts respect with Plaintiffs’ registers state unless the contractor 7(B), 7(C), challenges to Sections and 9 of participates in the Status Verifica- H.B. 1804 are somewhat different from System tion verify eligibility work those of the this panel. my others on employees. status of all new view, standing Plaintiffs lack to seek an July After no contractor injunction against or subcontractor enters who into con- 7(B), with respect Section their public employer tract with a shall enter claim respect to Section 9 is barred into such a contract subcontract Injunction the Tax Act. I concur with physical perform- connection with the panel the other members of affirm- ance of services within this state unless ing injunction against enforcement of registers contractor or subcontractor 7(C), my grounds but are narrower in the participates Status Verifica- than theirs. System verify tion information of all new employees. *29 7(B) I. SECTION 3. of this provisions The subsection I respectfully any from the shall majority apply dissent not to contracts entered opinion’s the holding prior that district court into to the effective date of this it, nothing may ply with there is in the record such contracts though even
section any suggest public employer to that is performance of ser- physical involve the speculation July pure recalcitrant. It is to be- after 2008. within this state vices the by Attorney lieve that action General require or provide statute not This does 1313(B) imminent, § with to is or respect any by Attorney enforcement Gen- imminent injury by that to be suffered (The have Attorney may General eral. members from the Plaintiffs’ enforcement employer,” as a but “public duties 1313(B) § fairly to the At- is traceable him seeking are relief from Plaintiffs not torney General. role.) Plaintiffs’ sole claim is in that The Attorney This is case in which may have a role not a Attorney that the General 1313(B) make all the of his in General is sued to sure that because duties under example, state bases covered. For someone reviewing approving and contracts are un- being improperly prosecuted to law fearful of duty (presum- his enforce state may make that der a criminal statute sue the Attor- ably by bringing suit to sure statute). ney with the as well as the district attor- employers comply General public Attorney ney, may because the duty to review and General alleged As for contracts, step precluded attorney the Plaintiffs have if the district state approve In the be- doing no that such review from so. circumstances evidence presented case, however, public us if a of the work of the fore in this approval part employer enjoined enforcing were from Attorney by The statutes cited General. invalid, it is I would not more than authorize because Plaintiffs do no Attorney bring suit expect General to agencies request to assistance state employer that preparing against public con- to enforce Attorney General 18b(A)(7) tracts, tit. section. see Okla. Stat. (2001), Attorney and authorize General previously plaintiff We held that a have 18b(A)(3), §§ law, id. state see
to enforce standing bring lacked to claim because (16). (10), (9), Attorney And the General was selected. wrong defendant that court review represents Systems Gandy, Nova 416 F.3d Health Attorney state-agency contracts (10th Cir.2005), plaintiffs does “occur as matter General challenged providing an statute Att’y Suppl. in Oklahoma.” Gen. practice “[a]ny performs who an abor- person 2009). (May 22, Consequently, Br. at 3 parental without consent tion on a minor injunction against the the substance of an shall be liable for the cost knowledge solely enjoin Attorney would be General such any subsequent medical treatment require bringing him from suit other require minor because of the abor- might 1313(B). §with comply officials to public 63, § tit. 1-740. Under tion.” Okla. Stat. law, recoup depends thus such medical costs standing on suit
The Plaintiffs’ brought by could be minors or “medical showing actual and imminent their an incur certain costs Attorney bring will facilities that treatment threat that the General fail patients to reimburse.” require public employ- their or threaten suit to 1313(B). Health, plain- F.3d at The I am Nova comply aware ers provider, the de- if tiff was an abortion showing. Even one could of no such medical has a fendants were officials state-run that the assume who, theory, bring could suit in that and institutions interest statute particular costs. recoup treatment eager to action under the law willing be if not take would said, injury had plaintiff, fail we shown who to com- against public employers *30 potential fact because the law created court acknowledged Attorney that liability discouraged plaintiff that “general duty General had a to enforce performing parental abortions absent con- the laws of the Commonwealth of Penn- sent, paren- and there was evidence that a sylvania,” it “theoretically was policy tal-consent would result the loss possible” that he could “initiate[ ] suit of “some business.” Id. at 1155. con-We against Westco’s interests.” Id. at 114. cluded, however, that plaintiff could But because the record did not establish fairly injury not trace this to the named action, id., “realistic likelihood” of such Although defendants. See id. at 1156-58. the court concluded that Westco lacked the defendant medical institutions could standing General, to sue Attorney see law, bring they suit under the could do so id. at 114-16. (1) only “they if happen to incur medical Following authority, this I would hold (2) (3) costs by patient reimbursed that the standing Plaintiffs lacked to bring required that were because of an abortion against their claim the Attorney General. (4) (5) performed by [plaintiff] on a minor The record prospect fails to show that the (6) parental without consent or knowl- Attorney of the taking action to edge.” at speculative pros- Id. 1157. This enforce Section spec- is more than pect was insufficient support standing. ulative. Because the district court lacked at See id. 1157-58. jurisdiction claim, over that we should re- A decision the Third Circuit is also verse and remand for dismissal. I there- instructive. Corporation 1st Westco fore concur in the reversal of the district School District Philadelphia, 6 F.3d preliminary injunction court’s against the (3d Cir.1993), Pennsylva- concerned a 1313(B). enforcement of Section nia statute “mandat[ing] only Penn- sylvania may residents work on public II. SECTION 9 school projects.” construction Id. at 111.
An individual school district could “refuse I respectfully majority dissent from the payment price contract [a] con- [a] opinion’s holding that the district court ” tractor’ who employed out-of-state labor. jurisdiction enjoin had the enforcement (internal Id. at quotation marks omit- (§ 25, § of Okla. tit. Stat. 2385.32 9 of H.B. ted). Pennsylvania A in- school district 1804). view, my injunctive such relief is Westco, voked the against law a construc- (the Injunction barred the Tax Act company tion employed had New “TIA”), 28 U.S.C. 1341. Federal law is Jersey workers to renovate three of the clear that the TIA injunctions forbids district’s buildings. See id. at 111-12. against tax-withholding statutes. And challenged Westco the constitutionality of § statute; 2385.32 is such a requires residency requirement in federal court withholding of pay- income taxes from judgment obtained against favorable ments made to independent certain con- district, the school Secretary of Edu- tractors provides for enforcement of cation, Attorney and the General. See id. requirement. appeal On the Third Circuit ruled that 2385.32(A) 25, § tit. Okla. Stat. states: there was “no controversy” case or be- Attorney tween the If an independent contractor, General and individual Westco. Id. at 116. contracting The court reasoned physical performance that the residency charged state, law Pennsylvania of services in provide fails to districts, General, school not the contracting entity to the documentation with enforcing it. See verify id. 113. The contractor’s
775 law any of tax under State authorization, collection to pursuant employment and efficient rem- plain, speedy of unau- where the use against prohibition the in the courts of such edy may contract set be had through alien labor thorized 1324a(a)(4), con- § the State. in 8 U.S.C. forth with- required to entity shall be
tracting added). (emphasis With- U.S.C. margin- top tax at the income state hold taxes, of method for collection holding is a in Section provided rate as tax al income if the tax enjoined even and it cannot be Stat- of the Oklahoma of Title 68 by other means. be collected might paid to compensation to applied utes as American Friends Ser- United States of performance for the individual such (AFSC), 419 U.S. vice Committee ex- this state which within services such (1974) curiam), (per 42 L.Ed.2d S.Ct. compen- minimum of amount the ceeds enjoined govern- the had a district court entity required is contracting sation enforcing requiring the statute from ment on United States as income report to income taxes from the withholding of Form Revenue Service Internal (The em- employees. of AFSC’s salaries words, an inde- if one who hires In other express opposition their ployees wished taxes.) cannot obtain verifica- contractor pendent refusing to The by pay to war authorization contractor’s tion of the the district held Supreme Court the hirer must with- country, in this work the Anti- injunction was barred court’s payments 7421(a). taxes from its hold income Act, The Injunction 26 U.S.C. 2385.32(B) makes equivalent contractor. of Anti-Injunction Act is have been taxes that should liable for hirer It TIA taxes. states: for federal withheld. 6015(e), in sections Except provided 6212(a) 6246(b), (c), 6213(a), 6225(b), govern- for a may be rare and
Although 6672(c), 6694(c), pay- 6330(e)(1), 6331(i), withholding from require tax ment to contractors, 7426(a) 7429(b), (b)(1), no it is and independent ments restraining be with- of require purpose that taxes for the suit uncommon any tax shall wages than collection of other assessment or payments from held by any per- re- court example, any Oklahoma For be maintained employees. royal- son, person from not such withholding or income-tax whether quires tax was as- See Okla. whom such person against to nonresidents. ty payments Royalty withhold- § 2385.26. tit. sessed. Stat. ensuring that of purpose
ing serves
7421(a).
Supreme Court
The
26 U.S.C.
in-
pay required Oklahoma
nonresidents
explained:
If
is concerned
taxes.
come
...
contend
since
employees]
[The
contractors, or certain
independent
only
enjoined
one
District Court
contractors, are
independent
subsets
collection, and the Govern-
method
required state
payment of
likely to evade
levy
their
free to assess
ment is still
tax,
require with-
similarly
it can
income
due,
apply.
the Act does not
when
taxes
to those
holding
payments
ignores
plain
contention
But
income-tax
that their
to ensure
contractors
proscribes
wording
the Act which
will be satisfied.
obligations
restraining the
purpose of
“suit for the
such
injunctions against
any tax.”
TIA forbids
collection of
The
assessment or
TIA states:
injunction against
The
withholding statutes.
The District Court’s
withholding
tax
of the
the collection
enjoin, sus-
courts shall not
district
The
tax,
of the
assessment,
the collection
levy
enjoins
or restrain
pend
contrary
express
therefore
to the
lan-
opinion quotes selectively
*32
Anti-Injunction
of
guage
Act.
H.B.
which
in
preamble
is
essence the
to the
statute. Section
states in full:
Friends,
Am.
U.S.
Second, majority opinion improperly migration expressed in the first two sen- focuses on the motive for enactment of support tences are to proposition § 2385.32. The TIA is not concerned with the third agencies sentence that state why a state chooses to collect in a cooperate its taxes should with federal authorities all, particular manner. After even if the to enforce federal immigration law. The (because, tax itself is say, unconstitutional sentence relevant to the withholding stat- of an improper purpose), ute, however, TIA sentence, forbids is the final which federal courts enjoining collection of states that “other necessary measures are event, the tax. question I integrity to ensure the govern- various majority opinion’s analysis of that motive. programs mental and services.” It that the to infer quite reasonable therefore CLYMA, individual, Sam withholding statute is
purpose Plaintiff-Appellee, in- integrity of Oklahoma’s protect unlawful ensuring that system by come-tax contrac- acting as immigrants taxes, SUNOCO, INC., Pennsylvania much income pay Oklahoma
tors to non- royalty payments withholding Corporation, on Defendant- *33 taxes payment Appellee. ensures residents nonresidents. Lawyers Employment Oklahoma 7(C)
III. SECTION Association, Movant- majority opinion agree I with Appellant. the Hu- injunction against
affirming the respect with Rights man Commission Lebeck; B. John D.W. James 7(C). The Plaintiffs enforcement Partridge, Amici Curiae. injunction; and to seek the standing have No. 08-5153. 7(C) because by the IRCA preempted sanc- imposition of civil for provides of Appeals, United States Court I unauthorized aliens. employing for tions Tenth Circuit. majority opin- far as the go would reinstatement, ion, however, saying 3, 2010. Feb. are civil costs, attorney fees pay,
back that term meaning
sanctions within agree I be inclined to
in the IRCA. would opinion in Ma- the Second Circuit Foundation, Housing
deira v. Affordable (2d Cir.2006),
Inc., 469 F.3d 239-40 compensatory relief does held that
which meaning
not come within IRCA’s Nevertheless,
civil sanctions. among for provided of relief
types (which
discriminatory practices include vi- 7(C)) penalties up are civil
olations of $100,000 $50,000 a first violation and
for a second. See Okla. Stat. tit. 7(C) 1506.6(B)(3). §of Perhaps some by excluding saved those civil-
could be reach; from its but the
penalty provisions argued have not for such
Defendants
result.