14 OCAHO no.

1352

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER

April 10, 2020

MD SHAKHAWAT HOSSAIN, )
Complainant, )
) 8 U.S.C. § 1324b Proceeding
v. ) OCAHO Case No. 2020B00035
)
JOB SERVICE NORTH DAKOTA, )
Respondent. )
)

ORDER GRANTING MOTION TO DISMISS

I. INTRODUCTION

This matter arises under the antidiscrimination provisions of the Immigration and Nationality Act
(INA), as amended by the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1324b.
Complainant Md Shakhawat Hossain alleges that Respondent Job Service North Dakota
discriminated against him because of his citizenship status and national origin in violation of
§ 1324b(a)(1), retaliated against him in violation of 8 U.S.C. § 1324b(a)(5), and committed
document abuse in violation of 8 U.S.C. § 1324b(a)(6). Compl. at 10-12. Respondent denied the
allegations and filed a Motion to Dismiss, predicated, in part, on its Eleventh Amendment
sovereign immunity. Mot. Dismiss at 1. For the reasons set forth herein, the Motion to Dismiss
is GRANTED, and the complaint is dismissed in its entirety.

II. BACKGROUND AND PROCEDURAL HISTORY

Complainant is a foreign national from Bangladesh who stated that he is currently authorized to
work in the United States. Compl. at 5.

On October 28, 2019, Complainant filed a charge with the Department of Justice’s Immigrant
and Employee Rights Section (IER) against Job Service North Dakota (JSND) alleging
discrimination based on his citizenship status and national origin, retaliation, and document
abuse. Id. at 10-12. On November 8, 2019, IER sent Complainant a letter of determination
informing him that his submission was untimely filed and, thus, IER could not open an
investigation into his claims. IER Letter of Determination at 1.
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On January 17, 2020, Complainant filed his complaint with the Office of the Chief
Administrative Hearing Officer (OCAHO). Complainant asserts that Respondent hired him as a
Programmer Analyst in 2017. EEOC Form 5 at 1. On June 20, 2018, Respondent terminated
Complainant from his employment. Compl. at 10. Complainant stated that Respondent’s
Human Resources (HR) personnel “filled out the STEM Extension Training Plan Form or I-983
and provided [him an] e-verify MOU [memorandum of understanding] to give it to [the] school
DSO [designated school official].” Id. On June 14, 2018, the school DSO, Carly Gunnerson,
issued two copies of Form I-20 (Certificate of Nonimmigrant Student Status) so that
Complainant could get an extension of his work eligibility. Id. According to Complainant, he
presented these forms to an HR employee, Jason Sutheimer, but Sutheimer informed
Complainant that his E-verify number did not work and that he cancelled Complainant’s I-20
forms. Id. On June 20, 2018, Respondent presented Complainant with a termination letter,
which Complainant refused to sign initially. Id. Complainant alleges that Jason Sutheimer
threatened to jeopardize Complainant’s immigration status. Id. According to Complainant, he
then felt pressured to sign the termination letter, which he proceeded to sign. Id. The next day,
Complainant alleges that he gave Respondent a resignation letter because he was told that, if he
did so, he could potentially be rehired in the future. Id. When Complainant later reapplied for
the position, Respondent did not rehire him. Id. Complainant also alleges that on or around
December 17-21, 2018, he started to notice that some of his co-workers were following him and
some people would block his driveway at night. Compl. at 15.

Respondent timely filed an answer and a Motion to Dismiss (Motion), on February 27, 2020.
The answer denies the material allegations of the complaint and raises the following affirmative
defenses: (1) Complainant failed to state a claim upon which relief may be granted; (2) as a state
agency, Respondent is entitled to state sovereign immunity under the Eleventh Amendment to
the United States Constitution; (3) Respondent employs more than fourteen employees; and (4)
Respondent had legitimate, non-discriminatory reasons for terminating Complainant’s
employment. Answer at 2.

The Motion similarly argues that, as a state agency, Respondent is entitled to state sovereign
immunity under the Eleventh Amendment to the United States Constitution. Mot. at 2.
Alternatively, Respondent argues that (1) with respect to the national origin claims, this Court
lacks jurisdiction over Respondent because it employs more than fourteen people and, thus, is
covered by Title VII of the Civil Rights Act, and (2) Complainant’s filing with the IER is
untimely. Id.

On March 6, 2020, Complainant filed a response in opposition of the motion, along with a brief
in support of the response. Complainant asserts in his brief that the last date of discriminatory
conduct occurred either December 17-22, 2018, or March 24, 2019. Complainant also argues
that Respondent is not entitled to sovereign immunity under the Eleventh Amendment. Brief in
Opp. of Mot. at 5. Complainant argues that Respondent waived its sovereign immunity, on a
case-by-case basis, “by accepting federal funds for its Unemployment Insurance Division,
[Workforce Innovation and Opportunity Act (WIOA)], and other federal funds.” Id. at 4, 6.
Furthermore, Complainant asserts that his complaint was “timely filed with EEOC, according to
[the] discovery rule[,] . . . equitable tolling, [and] estopp[el] under [T]itle VII interpretation.” Id.

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at 8. According to Complainant, he only discovered his injury in February of 2019, which was
within 180 days of filing his charge with EEOC. Id.

Complainant also filed a response to Respondent’s Answer on the same day. This document
restates the factual allegations set forth in the complaint.

III. STANDARDS

The Administrative Law Judge (ALJ) may dismiss the complaint, based on a motion by the
respondent, if the ALJ determines that the complainant has failed to state a claim upon which
relief can be granted. 28 CFR § 68.10(b). While the OCAHO rules of practice do not
specifically provide for motions to dismiss for lack of subject-matter jurisdiction, respondents
may assert, on a motion to dismiss, that the Court lacks subject-matter jurisdiction on a claim.
See 28 C.F.R. § 68.1 (providing that the Federal Rules of Civil Procedure “may be used as a
general guideline in any situation not provided for or controlled by these rules . . . .”); see also
Seaver v. Bae Systems, 9 OCAHO no. 1111, 2 (2004) 1 (citations omitted). Rule 12(b)(1) of the
Federal Rules of Civil Procedure may be used as a general guideline in assessing whether
OCAHO has subject-matter jurisdiction over a particular claim. 28 C.F.R. § 68.1.

Since this decision ultimately rests upon sovereign immunity grounds, it will be treated as a
motion to dismiss for lack of subject-matter jurisdiction. See Ugochi v. North Dakota Dept. of
Human Services, 12 OCAHO no. 1304, 2 (2017) (citing Hagen v. Sisseton-Wahpeton Cmty.
Coll., 205 F.3d 1040, 1042-43 (8th Cir. 2000)). In determining whether there is a factual basis to
support the Court’s exercise of subject-matter jurisdiction, the Court is not limited to the
allegations in the complaint and may consider other material in the record. Ugochi, 12 OCAHO
no. 1304 at 2 (citing Osborn v. United States, 918 F.2d 724, 728-30 (8th Cir. 1990)).

IV. DISCUSSION

The Eleventh Amendment to the U.S. Constitution states, “[t]he judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.” The Supreme Court has interpreted this amendment to mean that “an
unconsenting State is immune from suits brought in federal courts by her own citizens as well as
by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); see also Alden v.
1
Citations to OCAHO precedents reprinted in bound Volumes 1 through 8 reflect the volume
number and the case number of the particular decision, followed by the specific page in that
volume where the decision begins; the pinpoint citations which follow are thus to the pages,
seriatim, of the specific entire volume. Pinpoint citations to OCAHO precedents subsequent to
Volume 8, where the decision has not yet been reprinted in a bound volume, are to pages within
the original issuances; the beginning page number of an unbound case will always be 1, and is
accordingly omitted from the citation. Published decisions may be accessed in the Westlaw
database “FIM-OCAHO,” or in the LexisNexis database “OCAHO,” or on the OCAHO website
at http://www.justice.gov/eoir/OcahoMain/ocahosibpage.htm#PubDecOrders.

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Maine, 527 U.S. 706, 745-46 (1999). The party seeking immunity from suit has the burden of
establishing that the Eleventh Amendment applies to it. Ugochi, 12 OCAHO no. 1304 at 3
(citing Reffell v. Prairie View A&M University, 8 OCAHO no. 1057, 4 (2000).

Under OCAHO case law, it is well-established that “complaints against state agencies are
routinely dismissed in this forum when the immunity defense is timely asserted.” Ugochi, 12
OCAHO no. 1304 at 4 (quoting Guerrero v. Cal. Dep’t of Corr. and Rehab., 11 OCAHO no.
1264, 2-3 (2015)). Respondent timely asserted this defense in both its answer and Motion. In
light of the above mentioned principles, Respondent has demonstrated immunity from suit under
8 U.S.C. § 1324b.

JSND is a “state entity.” A respondent seeking immunity under the Eleventh Amendment “must
submit proof that it is, in fact, a ‘state entity.’” Wong-Opasi v. Tennessee, 8 OCAHO no. 1042,
652 (2000). North Dakota expansively defines the “State” as including “an agency, authority,
board, body, branch, bureau, commission, committee, council, department, division, industry,
institution, instrumentality, and office of the state.” N.D. Cent. Code § 32-12.2-01(7). JSND is
“charged with administering the provisions of the North Dakota unemployment compensation
law and the provisions of the North Dakota state employment service . . . which must be
administered by a full-time salaried executive director, who is subject to the supervision and
direction of the governor.” N.D. Cent. Code § 52-02-01. Given that Job Service North Dakota is
an entity created by the State of North Dakota in order to “administer[] the provisions of the
North Dakota unemployment compensation law,” the Court finds that it is, in fact, a “state
entity.”

There are two exceptions to state sovereign immunity under the Eleventh Amendment. First,
Congress may statutorily abrogate an unconsenting state’s sovereign immunity by clear and
unmistakable language, pursuant to its power to enforce the substantive provisions of the
Fourteenth Amendment to the U.S. Constitution. See Welch v. Tex. Dept. of Highways and
Public Transp., 483 U.S. 468, 474 (1987); see also Ugochi, 12 OCAHO no. 1304 at 4. Second, a
State may waive its sovereign immunity and consent to suit in federal court. Welch, 483 U.S. at
473. The Court may only find a waiver where stated “by the most express language or by such
overwhelming implications from the text as [will] leave no room for any other reasonable
construction.” Edelman, 415 U.S. at 673.

As to the first exception to Eleventh Amendment immunity, “it is well-established OCAHO

precedent that Congress did not express any intent to abrogate the states’ sovereign immunity
when it enacted 8 U.S.C. § 1324b.” Ugochi, 12 OCAHO no. 1304 at 5; Reffell, 9 OCAHO no.
1057 at 4 (collecting cases). In Hensel v. Office of the Chief Administrative Hearing Officer, 38
F.3d 505, 508-09 (10th Cir. 1994), the United States Court of Appeals for the Tenth Circuit held
that § 1324b did not abrogate either federal or state sovereign immunity, and no OCAHO
decision since then has held otherwise. Ugochi, 12 OCAHO no. 1304 at 5; Reffell, 9 OCAHO
no. 1057 at 4. Since Complainant is asserting a claim under § 1324b, and Congress did not
abrogate the states’ sovereign immunity when it enacted § 1324b, the first exception to Eleventh
Amendment immunity does not apply in this case.

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Further, Congress may indirectly abrogate a state’s sovereign immunity by conditioning the
receipt of federal funds on a state’s waiving immunity under the program for which the federal
funds are provided. Jim C. v. United States, 235 F.3d 1079, 1081 (8th Cir. 2000) (citing College
Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666
(1995)). “A waiver of Eleventh Amendment immunity as a condition of the receipt of federal
funds should be found ‘only where stated by the most expressive language or by such
overwhelming implication from the text as [will] leave no room for any other reasonable
construction.’” Doe v. Nebraska, 345 F.3d 593, 597-98 (8th Cir. 2003) (quoting Edelman, 415
U.S. at 673). Complainant argues that North Dakota has waived its sovereign immunity by
accepting federal funds under the “Unemployment Insurance Trust Fund, the Workforce
Innovation Opportunity Act, and many other federal funds” received for “any purpose.” Resp. in
Opp. Mot. at 1.

Section 1324b does not contain any provision allocating federal funds conditioned on a state’s
waiver of sovereign immunity. See § 1324b. Further, there is nothing in the Unemployment
Trust Fund statutory provisions that condition the receipt of federal funds on a state’s waiver of
sovereign immunity. See 42 U.S.C. § 1104. Similarly, the Workforce Innovation Opportunity
Act does not contain any provision that conditions the receipt of federal funds on a state’s waiver
of sovereign immunity for suits brought under 8 U.S.C. § 1324b. See 29 U.S.C. § 3101 et seq.
Complainant does not identify any other federal statute that conditions the receipt of federal
funding on the waiver of sovereign immunity in cases under 8 U.S.C. § 1324b. Complainant
only argues that North Dakota waived its sovereign immunity based on its receipt of “other
federal funds” for “any purpose.” 2 Even when a state has accepted federal funds and waived
sovereign immunity, the Eighth Circuit has narrowly interpreted such waiver as applying only to
the particular department or agency that receives or distributes the federal funds. Jim C. v.
United States, 235 F.3d 1079, 1081 (8th Cir. 2000). Thus, a state does not waive sovereign
immunity in all cases when it accepts federal funds. Id. As such, the Court finds that North
Dakota has not waived sovereign immunity in cases brought under § 1324b by accepting federal
funds.

With regard to the second exception, North Dakota has not consented to suit under 8 U.S.C.
§ 1324b, as it has asserted Eleventh Amendment immunity as a ground for dismissal. Moreover,
as the Court in Ugochi noted, while North Dakota has abrogated its state sovereign immunity

2
While Complainant does not cite another federal statute under which Respondent accepted federal funds on the
condition that it waive sovereign immunity, courts in the Eighth Circuit have considered whether a state waived
sovereign immunity for cases arising under federal nondiscrimination statutes by accepting funds under § 504 of the
Rehabilitation Act. Jim C. v United States, 235 F.3d 1079, 1081 (8th Cir. 2000); Fiske v. Iowa, 633 F.Supp.2d 682,
690 (N.D. Iowa 2009). Section 504 conditions the acceptance of funds on the waiver of immunity under specifically
enumerated federal nondiscrimination statutes and “any other federal statute prohibiting discrimination by recipients
of Federal financial assistance.” 42 U.S.C. § 2000d-7(a)(1). Section 1324b is not enumerated in § 504. See id.
Section 504 only applies to non-enumerated federal statutes “prohibiting discrimination by recipients of federal
financial assistance.” Fiske, 633 F.Supp.2d at 690. Section 1324b is not a statute “prohibiting discrimination by
recipients of federal financial assistance.” Compare § 1324b(b)(1) (“It is an unfair immigration-related employment
practice for a person or other entity to discriminate against any individual . . . with respect to the hiring, or
recruitment or referral for a fee, of the individual for employment or discharging the individual from employment . .
. because of such individual’s national origin, or . . . citizenship status”), with 42 U.S.C. § 2000d (“No person in the
United States shall, on the ground of race, color, or national origin[ ] . . . be subjected to discrimination under any
program or activity receiving Federal financial assistance”); see also Fiske, 633 F.Supp.2d at 689, 690.

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from certain claims, see, e.g., N.D. Cent. Code § 32-12.2-02; Bulman v. Hulstrand Constr. Co.,
521 N.W.2d 632, 637, 639 (N.D. 1994) (abolishing the State's common-law sovereign immunity
from tort liability) (relying on N.D. Const., art. I, § 9), North Dakota has specifically preserved
its Eleventh Amendment sovereign immunity by statute. See N.D. Cent. Code § 32-12.2-10
(“This chapter does not waive the state's immunity under the Eleventh Amendment to the United
States Constitution in any manner, and this chapter may not be construed to abrogate that
immunity.”); Ugochi, 12 OCAHO no. 1304 at 5.

Additionally, the doctrine of Ex parte Young, 209 U.S. 123, 158-59 (1908), which holds that
individual state officials or employees may be sued in federal court for prospective injunctive
relief when the plaintiff alleges that the officials or employees are violating federal constitutional
rights and laws, is inapplicable. Complainant did not file his complaint against any individual
JSND employees or officials. The Young doctrine “has no application in suits against the States
and their agencies, which are barred regardless of the relief sought.” Puerto Rico Aqueduct &
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). Accordingly, because
Complainant’s complaint is only against the State of North Dakota and no exception to North
Dakota’s Eleventh Amendment sovereign immunity applies, JSND cannot be sued in this forum
and Complainant’s complaint must be dismissed.

V. CONCLUSION

Respondent is a state agency that is entitled to sovereign immunity from these proceedings
pursuant to the Eleventh Amendment to the U.S. Constitution. Neither of the exceptions to
sovereign immunity apply to this case. Congress has not abrogated North Dakota’s Eleventh
Amendment immunity to lawsuits brought under 8 U.S.C. § 1324b, nor has North Dakota
expressly or impliedly waived its Eleventh Amendment immunity for the instant case. As such,
the Complaint is DISMISSED.

SO ORDERED.

Dated and entered on April 10, 2020.

__________________________________
Jean C. King
Chief Administrative Law Judge

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Appeal Information

In accordance with the provisions of 8 U.S.C. § 1324b(g)(1), this Order shall become final upon
issuance and service upon the parties, unless, as provided for under the provisions of 8 U.S.C. §
1324b(i), any person aggrieved by such Order files a timely petition for review of that Order in
the United States Court of Appeals for the circuit in which the violation is alleged to have
occurred or in which the employer resides or transacts business, and does so no later than 60
days after the entry of such Order. Such a petition must conform to the requirements of Rule 15
of the Federal Rules of Appellate Procedure.