By: Bruce Buchanan:

Under a matter that arose out of the antidiscrimination provisions of the Immigration and Nationality Act (INA), OCAHO affirmed caselaw dictating, in most circumstances, a state agency has sovereign immunity from an INA discrimination complaint. See Md Shakhawat Hossain v. Job Service North Dakota, 14 OCAHO no. 1352 (Apr. 10, 2020).

On October 28, 2019, Hossain filed a charge with the Immigrant & Employee Rights Section (IER) of the Department of Justice 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 because the underlying circumstances occurred on June 20, 2018, beyond the applicable statute of limitations. In response, Hossain filed a complaint with OCAHO asserting JSND terminated Complainant from his employment.

Respondent timely filed a Motion to Dismiss denying the material allegations of the complaint and raising these defenses: (a) it is entitled to state sovereign immunity under the 11th Amendment to the U.S. Constitution; and (b) the Complaint is untimely.

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 v. North Dakota Dept. of Human Services, 12 OCAHO no. 1304, 4 (2017) (quoting Guerrero v. Cal. Dep’t of Corr. and Rehab., 11 OCAHO no. 1264, 2-3 (2015). JSND is a “state entity.” 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). Given that JSND is an entity created by the State of North Dakota in order to “administer the provisions of the North Dakota unemployment compensation law,” it is a “state entity.”

There are two exceptions to state sovereign immunity under the 11th Amendment – (1)
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 14th Amendment to the U.S. Constitution, and (2) a state may waive its sovereign immunity and consent to suit in federal court.

As to the first exception to the 11th Amendment immunity, it is a 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. Concerning the second exception, North Dakota has not consented to a suit, as it has asserted 11th Amendment immunity as a ground for dismissal.