Olimpia TOVAR, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent

3 F.3d 1271 62 Fair Empl.Prac.Cas. 1414 , 62 Empl. Prac. Dec. P 42,534 Olimpia TOVAR, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent. No. 91-70027. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 12, 1992. Decided Aug. 31, 1993. Stephanie Garrabrant, Brobeck, Phleger & Harrison, San Francisco, CA, for petitioner. Matthew M. Collette, U.S. Dept. of Justice, Washington, DC, for respondent. Petition for Review of a Decision of the Executive Office for Immigration Review. Before: REINHARDT, NOONAN, and THOMPSON, Circuit Judges. REINHARDT, Circuit Judge: 1 There are two issues before us: whether a United States Postal Service ("Postal Service") regulation that prohibits the employment of temporary resident aliens violates the unlawful discrimination provision of the Immigration Reform and Control Act of 1986 ("IRCA"), and whether the Postal Service exceeded its authority under the Postal Reorganization Act of 1970 ("Act") in promulgating the regulation. The administrative law judge ("ALJ") from the Executive Office for Immigration Review at the Department of Justice granted summary judgment for the Postal Service, holding that its refusal to hire…

concurring in part and dissenting:

I concur in Parts I and II of the majority opinion. I respectfully dissent from Part III.

A. The Postal Service’s Authority to Adopt the Regulation Under Its Organic Statute

Tovar contends that even if IRCA allows the Postal Service to adopt regulations that discriminate, the Postal Reorganization Act of 1970 (the “Postal Act”) does not confer *1283 authority on the Postal Service to adopt regulations excluding persons from employment based on their immigration status. Her principal argument is that the Regulation at issue is not reasonable because it is inefficient, contrary to the Postal Service’s mandate from Congress. She also argues that the Regulation exceeds the regulatory power vested in the Postal Service by the Postal Act because the Regulation has “constitutional implications” and because it institutes a “broad policy guideline.”

The majority reverses the summary judgment in favor of the Postal Service and remands for an evidentiary hearing on the question whether the Regulation is “reasonable.” I would affirm.

The majority and I agree that Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 , 104…

There are two issues before us: whether a United States Postal Service (“Postal Service”) regulation that prohibits the employment of temporary resident aliens violates the unlawful discrimination provision of the Immigration Reform and Control Act of 1986 *1272 (“IRCA”), and whether the Postal Service exceeded its authority under the Postal Reorganization Act of 1970 (“Act”) in promulgating the regulation. The administrative law judge (“ALJ”) from the Executive Office for Immigration Review at the Department of Justice granted summary judgment for the Postal Service, holding that its refusal to hire Olimpia Tovar, a temporary resident alien, did not constitute unlawful discrimination because the regulation fell within a statutory exemption to the anti-discrimination provision of IRCA; he also held that the Postal Service did not exceed its grant of authority under the Act in promulgating the regulation. Tovar disputes both aspects of the ruling, and also challenges the regulation on fifth amendment due process and equal protection grounds. (Tovar raised the constitutional issues before the ALJ, who declined to decide them because they concerned a regulation not issued by his own…