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 S.Ct. 2778, 2781 , 81 L.Ed.2d 694 (1984), provides the proper standard of review on the question of reasonableness. We also agree the reasonableness test requires that “the link between a regulation and a legitimate purpose it is intended to advance demonstrate more than ‘the minimum rationality a statute must bear in order to withstand analysis under the Due Process Clause.’” Majority at 1277-1278 (quoting Bowen v. American Hospital Ass’n, 476 U.S. 610, 627 , 106 S.Ct. 2101, 2112 , 90 L.Ed.2d 584 (1986) (plurality opinion)).

The majority says “the agency has failed to offer facts that would enable us to examine” the reasonableness of the Regulation and that instead the agency offers “wholly unsupported generalizations that do not permit us to evaluate its claims.” According to the majority, the failure of the agency to offer these facts precludes summary judgment in its favor. In arriving at this conclusion, the majority has mistakenly turned the Postal Service into the claimant, has incorrectly applied the summary judgment rule and has placed the burden of proof on the wrong party.

1. Requirements for Summary Judgment

Under 28 C.F.R. § 68.38 (c) (1992), the ALJ “may enter a summary decision for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision.” See also Fed.R.Civ.P. 56(c). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat.an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 , 106 S.Ct. 2505, 2510 , 91 L.Ed.2d 202 (1986).

The problem here is not a clash over the facts. Indeed, both Tovar and the Postal Service believed that this case was ripe for summary adjudication. The majority simply believes that the Postal Service has not come forward with a “properly supported” motion for summary judgment. The defect, according to the majority, is the insufficiency of the Booher Declaration. But, of course, summary judgment could have been granted to the Postal Service “regardless of whether the moving party accompanies its summary judgment motion with affidavits.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 , 106 S.Ct. 2548, 2553 , 91 L.Ed.2d 265 (1986). 1 Rule 56 does *1284 not place an evidentiary burden on the moving party. Instead, Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial’ ” Id. at 324 , 106 S.Ct. at 2553.

The moving party’s burden is to show “an absence of evidence to support the nonmov-ing party’s case.” Id. at 325, 106 S.Ct. at 2554. When the moving party carries this burden, the entry of summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322 , 106 S.Ct. at 2552.

Here, the Postal Service is the moving party. Tovar will bear the burden of proof at the evidentiary hearing on remand. And it is Tovar who has not come forward with any evidence to establish that the Postal Service’s Regulation is inefficient or unreasonable, regardless of any deficiency in the Booher Declaration.

2. The Burden of Proof Under Chevron

In every civil case, the plaintiff (here To-var) bears the burden of proving at trial all of her claims, including contentions that an agency has unreasonably interpreted its statutory authority to regulate. In the administrative context, the typical case is not one such as this where an individual allegedly denied a benefit sues the agency and challenges the regulation. Instead, a regulation is typically challenged under Chevron when the agency seeks to enforce it through civil or administrative proceedings. In such proceedings the challenge to the regulation is an affirmative defense. In every civil case, the defendant bears the burden of proof as to each element of an affirmative defense.

Chevron jurisprudence has always implicitly regarded the person challenging the regulation as bearing the burden of proof, not the agency. The burden is not on the agency to justify its own regulation. See Maryland Dept. of Human Resources v. United States Dept. of Agric., 976 F.2d 1462 , 1476 (4th Cir.1992) (“Maryland would turn Chevron analysis on its head. In effect, Maryland wants USDA to bear the burden of showing affirmatively that the state’s interpretation of the statute is inconsistent with congressional intent.... This the agency is not required to do.”); Cabrera v. Martin, 973 F.2d 735 , 746 n. 6 (9th Cir.1992) (plaintiffs would have “to show that the federal defendants’ interpretation of [a statute and a regulation] was unreasonable in order to prevail against the federal defendants.”) (dicta).

The majority has placed the burden of proof on the Postal Service. The majority says the Postal Service’s burden is to show that the Regulation is “reasonable,” concluding, “the Postal Service could not stand silent in the face of these facts [that Tovar was discriminated against], but was required to offer specific evidence to show that its regulation was reasonable. See Pruitt v. Cheney, 963 F.2d 1160, 1165-66 (9th Cir.1991) (government must establish in the record its justification for the rationality of its group-status regulation); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 , 575-77 (9th Cir.1990) (government must show a rational basis for its policy by establishing a rational relationship between its group-status policy and a legitimate governmental interest).” Majority at 1278.

In its analysis, the majority searches the record to find a reasonable justification by the agency for the Regulation’s facial discrimination. The majority searches for the wrong evidence. This is not an equal protection case such as Pruitt or High Tech Gays. The question here is whether under Chevron the Regulation is a reasonable interpretation of the statute that requires the Postal Service to operate efficiently. Tovar must present evidence that shows the Regulation is inefficient, not just that it is discriminatory. By grafting the reasonableness requirement in an equal protection case onto the standard for review of agency action under Chevron, *1285 the majority deftly avoids addressing the lack of any evidence to show that the Regulation is inefficient.

Recognizing the weakness inherent in its approach, the majority then falls back on the teachings of Anderson v. Hodel, 899 F.2d 766 (9th Cir.1990), as an alternative holding. This is effectively a remand to let Tovar find some more evidence showing that the regulation is inefficient.

This is not a complex statute like the one in Anderson. If the evidence existed to create a genuine issue of material fact as to inefficiency, then Tovar should have presented this evidence to the ALJ. After all, she believed she had sufficient evidence to support summary judgment in her favor.

3. The Postal Service’s Authority to Promulgate the Regulation

Under 39 U.S.C. § 1001 (e)(2), the Postal Service is authorized to hire employees. Nothing in this section grants regulatory powers. However, the Postal Service’s power to promulgate the Regulation derives from 39 U.S.C. § 401 . Section 401 reads in part: “The Postal Service shall have the following general powers: ... (2) to adopt, amend, and repeal such rules and regulations as it deems necessary to accomplish the objectives of this title.”

The relevant objectives of the Postal Act are set forth in three separate provisions. 39 U.S.C. § 101 (a) reads: “[The Postal Service] shall provide prompt, reliable, and efficient services to patrons in all areas.” 39 U.S.C. § 101 (e) adds the requirement: “In determining all policies for postal services, the Postal Service shall give the highest consideration to the requirement for the most expeditious collection, transportation and delivery of important letter mail.” 39 U.S.C. § 403 lists these general responsibilities:

The Postal Act thus requires the Postal Service to operate efficiently. Tovar contends that the Regulation is unreasonable because it is inefficient. The majority opinion concludes that the failure of the Postal Service to provide sufficient facts supporting its position that the Regulation is efficient precludes summary judgment. Not only does this place the burden on the wrong party and misinterpret Chevron, it overlooks the fact that the Postal Service adopted the Regulation to carry out its mandate to operate an efficient postal service. In its view, it would be expensive and difficult for it to track temporary resident alien employees through the process of applying for permanent residency, and therefore inefficient to do so.

Tovar’s only response to this showing is her unsupported argument that discrimination against potential employees is inefficient in itself. The Postal Service, however, explains through the Booher Declaration that it is more efficient for it to hire career employees, that IRCA interferes with this interest, and that IRCA imposes an administrative burden on employers of temporary resident aliens.

Under IRCA, temporary resident aliens must apply for permanent residency, learn English and some elementary civics, and declare their intent to become citizens within a two-year period. Failure to do so makes an alien eligible for deportation. If the Postal Service were to hire temporary resident aliens as career employees, the only way it could be sure they timely applied for permanent residency and followed through with their applications would be to monitor this process. This would be an administrative burden. Although, as the majority notes, there is no requirement in IRCA that an employer verify the employee’s status on a continuing basis, the lack of a requirement does not prevent the Postal Service from wanting to know the citizenship status of its employees to promote career employment objectives. 2 This is an administrative burden *1286 the Postal Service has chosen to avoid by refusing to hire temporary resident aliens. Tovar proffered no evidence that it was unreasonable or inefficient for the Postal Service to want to avoid this tracking burden or that the Regulation was an unreasonable method to accomplish this.

Moreover, if some temporary resident aliens were to lose their authorization to work in the United States while employed by the Postal Service, the Postal Service could lose these employees by action of the Justice Department. The Postal Service believes temporary resident aliens are more likely to leave the United States than permanent resident aliens, whether through a failure to properly apply for permanent status, to fulfill the requirements for permanent status, or by choice. See Booher Declaration at ¶ 9. Thus, hiring temporary resident aliens could interfere with the Postal Service’s objective of promoting career employment.

“When a challenge to an agency’s construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do.” Chevron, 467 U.S. at 866 , 104 S.Ct. at 2798 .

The Postal Service’s policy may have been a poor choice. 3 Its justification for the policy may be weak. But Tovar has presented nothing to show that the Regulation is an unreasonable interpretation of the statute’s requirement that the mail be delivered efficiently.

The majority, by excusing Tovar from her proper burden, holds the ALJ erred in granting summary judgment. With that holding, the majority finds it unnecessary to consider any of Tovar’s other arguments. Because I differ from the majority on this issue, I address Tovar’s additional contentions.

Tovar argues that regardless of whether the Regulation is reasonable, the Postal Service did not have the power to adopt it. She argues that the Postal Act reserves to Congress, not the Postal Service, the power to set policy guidelines for the Postal Service when that policy has “constitutional implications.” She asserts that because the Postal Service’s refusal to hire temporary resident aliens has constitutional implications, the adoption of the Regulation exceeds the power to regulate vested in the Postal Service by 39 U.S.C. § 401 (2). This argument should be rejected.

The Postal Service makes numerous decisions that have constitutional implications. See, e.g., United States v. Kokinda, 497 U.S. 720 , 110 S.Ct. 3116 , 111 L.Ed.2d 571 (1990) (Rejecting a First Amendment challenge, the Supreme Court affirmed the defendants’ criminal convictions for violating the Postal Service’s regulation that bans soliciting contributions and political activity on Postal Service property, 39 C.F.R. § 232.1 (h)(1) (1989).). Never has a court concluded that Postal Service regulations with constitutional implications such as the one upheld by the Court in Kokinda were an unreasonable exercise of the powers granted by the Postal Act.

Tovar contends the legislative history of the Postal Act requires that Congress establish “broad policy guidelines” for the Postal Service and that the Postal Service may only adopt regulations to facilitate management of its “day-to-day activities.” She argues that a ban on hiring temporary resident aliens is a “broad policy” exceeding the Postal Service’s power.

We need not decide whether the Postal Service can issue regulations making broad *1287 policy guidelines, because Congress has promulgated specific guidelines pertaining to employment of non-citizens in federal service. Since 1938, Congress has excluded most aliens from government service in annual appropriations acts. See, e.g., Pub.L. 102-393, Title VI, § 607, 106 Stat. 1729 , 1766-67 (Oct. 6, 1992) (Appropriation through September 30, 1993); see also 5 U.S.C.A. § 3101 (note) (West Supp.1993), Hampton v. Mow Sun Wong, 426 U.S. 88, 108 , 96 S.Ct. 1895, 1907 , 48 L.Ed.2d 495 (1976). To the extent that the Postal Service has deviated from these guidelines and adopted a contrary “policy,” it has done so by hiring more aliens than the rest of the federal government, using its non-appropriated revenues. Tovar does not explain how the Postal Service’s more expansive policy of hiring eligible permanent resident aliens is an unreasonable interpretation of the Postal Service’s authority to adopt regulations under section 401(2) of the Postal Act.

If the legislative history of the Postal Act relied upon by Tovar carries any weight, it is evidence that the Postal Service has reasonably interpreted its authority to issue the challenged Regulation. This court is not in a position to press upon the Postal Service a requirement that it adopt even more progressive hiring policies, either under the Title 39 “efficiency” language or the Constitution. In sum, I would reject Tovar’s contention that the Regulation exceeds the Postal Service’s authority to regulate granted by the Postal Act.

B. Tovar’s Constitutional Claims

The ALJ stated his “power to rule on constitutional questions might not extend to a review of the constitutionality of other agency statutes or regulations.” ALJ Decision at 12. He therefore dismissed Tovar’s constitutional claims for lack of jurisdiction.

The parties have agreed on the facts that give rise to Tovar’s constitutional claims, and the record is sufficient for us to consider these claims without remand. 4 Accordingly, we may consider these constitutional issues for the first time on appeal. See Reid v. Engen, 765 F.2d 1457, 1461 (9th Cir.1985).

Tovar contends that the Regulation violates the Fifth Amendment. She relies primarily on Hampton v. Mow Sun Wong, 426 U.S. 88 , 96 S.Ct. 1895 , 48 L.Ed.2d 495 (1976). In Hampton , the Court held that a Civil Service Commission regulation which excluded all aliens from employment in the competitive civil service deprived all aliens as a class of a liberty interest in employment with the federal government without due process of law. 5 Id. at 116 , 96 S.Ct. at 1911 . Tovar asserts that under Hampton the Postal Service’s Regulation 312.21 is flawed in two respects: it denies temporary resident aliens a liberty interest in employment without due process and it denies temporary resident aliens equal protection of the laws.

At the outset, it is important to note two principal differences between the facts here and the facts in Hampton . First, the degree of the deprivation is substantially less here. In Hampton , all aliens were denied the opportunity for a large proportion of jobs in the government. 426 U.S. at 90 -92 & n. 1, 96 S.Ct. at 1899 -1900 & n. 1. Here, only a discrete group of aliens is denied an opportunity for employment with the Postal Service. Also, this discrete group of temporary resident aliens is not permanently denied employment. With some effort, and in as little as eighteen months, temporary resident aliens may attain permanent status, as Tovar has, and become employable by the Postal Service.

Second, unlike the Civil Service Commission in Hampton , the Postal Service has *1288 adopted the Regulation for reasons closely related to its management of personnel. The Postal Service asserts that the Regulation furthers administrative efficiency and its interest in career employment. The Postal Service does not rely on a contention that the Regulation advances national security interests that would properly be the concern of the President, or that it advances the desire of temporary resident aliens to obtain permanent residency, which would properly be the concern of the Justice Department and the INS. The Postal Service relies on the fact that the Regulation was adopted to address its concerns for management of its personnel. 6 In this circumstance, to survive a due process test “the rule must be justified by reasons that are properly the concern of the agency.” Yassini v. Crosland, 618 F.2d 1356, 1362 (9th Cir.1980) (per curiam).

The Hampton Court indicated that had the Civil Service Commission’s exclusionary regulation been adopted to promote administrative efficiency, which was properly within the province of that agency, the regulation would have had a rational basis. Hampton, 426 U.S. at 115 , 96 S.Ct. at 1911 . The administrative efficiency justification failed in Hampton because the Civil Service Commission never made any considered evaluation of the desirability of excluding all aliens, because the burden of establishing job classifications that could accommodate some aliens was not great, and because the “wholesale deprivation of employment opportunities” required rejection of an administrative convenience justification. Id. at 115-16 , 96 S.Ct. at 1911 .

In contrast to the regulation in Hampton , the Regulation at issue here might have been adopted “by an expert in personnel matters” for administrative convenience. Id. at 115 , 96 S.Ct. at 1911 . The record shows that the Postal Service reviewed the Regulation after the passage of IRCA and balanced the Postal Service’s interest in giving all aliens an opportunity for employment against the potential loss of efficiency if temporary resident aliens employed by the Postal Service were to lose their clearance to work in the United States.

In sum, we have before us a lesser deprivation of liberty than in Hampton , and the Postal Service has justified its decision not to hire temporary resident aliens for reasons within its expertise. These two distinctions compel the conclusion that Tovar’s due process claim fails.

Tovar also contends the Regulation is invalid on equal protection grounds. She asserts that the Regulation ought to receive strict scrutiny from this court. This is clearly wrong, because only state laws that discriminate among groups of aliens receive such high scrutiny. Mathews v. Diaz, 426 U.S. 67, 84-85 , 96 S.Ct. 1883, 1893-94 , 48 L.Ed.2d 478 (1976).

Although the federal government’s power to discriminate against aliens is broad, it cannot subject all aliens or any group of aliens to invidious discrimination. See id. at 77 , 96 S.Ct. at 1890; Plyler v. Doe, 457 U.S. 202, 210 , 102 S.Ct. 2382, 2391 , 72 L.Ed.2d 786 (1982). Here, the limited burden imposed on temporary resident aliens is not “invidious.” Tovar must show that the Regulation is “wholly irrational.” See Mathews, 426 U.S. at 82-83 , 96 S.Ct. at 1893 ; Mow Sun Wong v. Campbell, 626 F.2d 739, 744 (9th Cir.1980), cert. denied sub nom. Lum v. Campbell, 450 U.S. 959 , 101 S.Ct. 1419 , 67 L.Ed.2d 384 (1981); cf. Price v. INS, 962 F.2d 836 , 842 n. 6 (9th Cir.1992) (“an alien is ‘accorded a generous and ascending scale of rights as he increases his identity with our society,’ ” quoting Johnson v. Eisentrager, 339 U.S. *1289 768, 771 , 70 S.Ct. 986 , 940, 94 L.Ed. 1255 (1950)).

Tovar has presented no evidence that the Regulation is irrational. Moreover, the Regulation is rational. It is the Postal Service’s response to a policy choice made by Congress. The immigration laws impose burdens on employers who hire temporary resident aliens. These laws can reduce an employer’s efficiency. Congress did not want these burdens to cause employers to refuse to hire temporary resident aliens, so it enacted an anti-discrimination provision as part of IRCA. But Congress exempted itself and other federal employers from this restriction on discrimination. This allowed the Postal Service to adopt the Regulation banning the hiring of temporary resident aliens, which it adopted as a means of increasing its efficiency.

The Regulation may not be the best way for the Postal Service to deal with temporary resident aliens. It is, however, a rational means of promoting administrative efficiency, and that is where our analysis must end.

I would affirm the ALJ’s grant of summary judgment in favor of the Postal Service.

. In rejecting the Booher Declaration, the majority asserts: “[B]are assertions or unsupported conclusions are not facts sufficient to support either a summary or a post-trial judgment. See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir.1993)." Maj. at 1279. This language mischaracterizes MAI Systems and exposes the flaw in the majority's analysis.

Under Celotex, the moving party is not required to "support its motion with affidavits or other similar materials negating the opponent’s claim.” Celotex, 477 U.S. at 323 , 106 S.Ct. at 2553. Rather, "[a] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials in pleadings, but 'must set forth specific facts showing that there is a genuine issue for trial.' " MAI Systems, 991 F.2d at 518 (quoting Fed.R.Civ.P. 56(e), and citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 , 106 S.Ct. 2505, 2510 , 91 L.Ed.2d 202 (1986) (emphasis added)).

In MAI Systems, it was the nonmoving party, the defendant Peak, who failed to come forward with more than "mere argument” to defeat summary judgment. MAI Systems, 991 F.2d at 518 . Here, the nonmoving party, Tovar, failed to come *1284 forward with evidence showing that the Postal Service’s Regulation is inefficient or unreasonable. She will bear the burden of proof on these issues at trial. Consistent with Celotex and MAI Systems, the ALJ did not err in entering summary judgment against her.

. Although this sort of discrimination between classes of aliens and between aliens and citizens *1286 is exactly what IRCA intended to prevent in the private sector, a federal agency may discriminate in hiring under IRCA. An agency may not, however, discriminate in violation of the Constitution. This issue is addressed in Part B of this dissent.

. Tovar's strong examination score and the fact that she eventually attained permanent residency indicate she will prove to be a good employee. She has also shown that for a period of time the Postal Service had to function without her services. She has not, however, come forward with any evidence that permanent residents and citizens could not perform with equal efficiency the job she took as a flat sorting machine operator. The fact that she can do the job does not establish the inefficiency of the Regulation.

. The majority gives no indication as to why it believes "the record is inadequate” to assess the strength of the government's interests. Maj. at 1272 n. 1. The Postal Service has offered three justifications for its Regulation. We know exactly what means the Postal Service has chosen to accomplish its professed aims of administrative efficiency — exclusion of temporary residents. We have sufficient information to scrutinize these justifications for their legitimacy and to test the relationship between the ends and the means, which is the extent of our constitutional role.

. During the pendency of the Hampton litigation, the Postal Service broke ranks with the rest of the government and began to employ permanent resident aliens in most positions. Hampton, 426 U.S. at 97 -98 & n. 13, 96 S.Ct. at 1902-03 & n. 13. This policy continues.

. The Civil Service Commission's failure to advance an interest that was properly within its jurisdiction was essential to the Court’s conclusion in Hampton that the exclusionary regulation denied all aliens due process. 426 U.S. at 116, 96 S.Ct. at 1911. The Court determined that the "only concern of the Civil Service Commission is the promotion of an efficient federal service.” Id. at 114, 96 S.Ct. at 1910. The reasons offered by the Civil Service Commission to support its all-alien hiring ban focused on national security concerns. Id. at 104, 96 S.Ct. at 1905. "The Court held that due process required that there be a legitimate basis for presuming that the rule was actually intended to serve the Government's asserted interest.” Yassini v. Crosland, 618 F.2d 1356, 1362 (9th Cir.1980) (per curiam). Because of the tenuous link between the asserted national security interests advanced by the Hampton regulation and an efficient civil service, the basis for that regulation was not legitimate.