Boyd v. Sherling

6 OCAHO 916 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER February 25, 1997 TINA B. BOYD, Complainant, v. AMZI R. SHERLING, D.D.S., Respondent. 8 U.S.C. §1324b Proceeding ) Case No. 96B00047 DECISION AND ORDER TO DISMISS AND TO DENY APPROVAL TO AGREED VOLUNTARY DISMISSAL MARVIN H. MORSE, Administrative Law Judge Appearances: John B. Kotmair, Jr., on behalf of Complainant Wendell H. Cook, Jr., on behalf of Respondent I. Procedural History The chain of events leading to administrative adjudication of this case began on July 9, 1995. On that day Dr. Amzi Sherling, D.D.S., P.A. (Sherling or Respondent), having hired Tina B. Boyd (Boyd or Complainant) on May 29, 1995, through his agent, Eileen Sherling, requested that Boyd complete Department of the Treasury, Internal Revenue Service Form W–4, “Employee’s Withholding Allowance Certificate.”1 Boyd’s refusal to complete IRS Form W–4; refusal to 1 A taxpayer’s obligation to complete IRS Form W–4 properly has been litigated exten- sively. See e.g., Cheek v. United States, 498 U.S. 192, 194 (1991) (taxpayer who indicated on the Form W–4 that he was exempt from federal income tax prosecuted for attempted eva- sion of income tax and failure to file income tax returns).

Because employers must with- hold taxes from employee wages under 26 U.S.C.A. §3402(a), they are immunized from suit by 26 U.S.C.A. §3403 (an “employer shall not be liable to any person),” and by the Anti- Injunction Act, 26 U.S.C.A. §7421(a), (prohibiting suit against an employer for withholding taxes). Maxfield v. United States Postal Service, 752 F.2d 433, 434 (9th Cir. 1984). 1113 provide a social security number (an individual taxpayer’s identifica- tion number for U.S. citizens and residents under 26 C.F.R. §301.6109–1(a)(1)(ii)(D), (b)(2), (d) (1997 ; insistence that as a native- born U.S. citizen she is exempt from taxation, and insistence that her employer accept an improvised document instead of the information requested by IRS Form W–4, are the factual predicates upon which she alleges immigration-based employment discrimination.

The United States Court of Appeals for the Fifth Circuit has de- scribed the seemingly innocuous but to some incendiary Form W–4 as: an Internal Revenue Service form prepared by the taxpayer and submitted to the employer. From the information provided by the taxpayer, the employer de- termines how much of the taxpayer’s income should be withheld for taxes. United States v. Doyle, 956 F.2d 73, 74 n.2, 75 (5th Cir. 1992) (noting that “purposeful failure to file an accurate W–4 form could be viewed by the jury as an affirmative willful act to support the violation of 26 U.S.C. §7201,” quoting United States v. Connor, 898 F.2d 942, 945 (3d Cir., 1990), cert. denied, 497 U.S. 1029 (1990 .

An employer must withhold taxes from an employee’s wages by means of IRS Form W–4 and ensure that the employee completes the form. 26 C.F.R. §§31.3402(f)(5)–1, 31.3403(a)–1; 26 C.F.R. §301.6361–1. Maxfield v. United Postal Service, 752 F.2d 433, 439 (9th Cir. 1984) (“employer has no discretion but to follow IRS direc- tives . . . immune from liability to the employee, since the duty to withhold is mandatory, rather than discretionary, in nature”).

IRS Form W–4 requires the employee to provide certain informa- tion, including name, social security number (an individual’s tax- payer identification number), address, marital status, and number of exemptions claimed. 26 C.F.R. §§301.6109–1(a)(ii), 301.6361–1. The only exemption from tax withholding is afforded a taxpayer who sat- isfies both of two criteria specified on Form W–4: (1) the taxpayer must have a right to a Federal income tax refund because of no tax liability in the preceding year, and (2) the taxpayer must have the expectation of a refund because of no tax liability in the current year. IRS Form W–4.

Boyd refused to complete Form W–4 and was discharged by Sherling. 1114 On October 12, 1995, Boyd filed a nine-page charging letter dated September 30, 1995 with the Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Boyd argued that by insisting that she complete IRS Form W–4, and by subsequently firing her for refusing to do so, Sherling discriminated against her on the basis that as a United States citi- zen she was treated as an alien. Boyd argued that U.S. citizens are exempt from tax withholding under the Internal Revenue Code because only aliens are required to have Social Security numbers and are, therefore, the only individ- uals subject to tax withholding.

While not claiming that Sherling discriminated against her on a religious basis, Boyd nevertheless as- serted that Sherling refused to “reasonably accommodate” her ap- parently secular beliefs regarding government tax and social secu- rity policy. Boyd insisted that an employer’s obligation to withhold taxes from an employee’s paycheck must give way to the employee’s assertion of a philosophical objection to such withholding. Specifically, Boyd alleged that: On July 9th, 1995 . . . Eileen Sherling . . . presented to me a W–4 and insisted that I fill it out, which requires a social security number.

I did not submit this document as I no longer recognize any relationship to a social security number. It was additionally communicated to . . . Sherling . . . that I do not recognize any social security number in relationship to me as I have executed an Affidavit of Revocation and Rescission of my signature on the SS–5 Application for a Social Security Account Number Card, since there is not law that requires a U.S. Citizen to apply for or possess such a number. Title 42, section 405(c)(2)(B) does not include any requirement to assign numbers to U.S. Citizens, unless they make voluntary application. * * * With my position on the number stated, I explained that I was not subject to Subtitle C of the Internal Revenue Code (IRC), as this Subtitle implements the collection process of the taxes imposed by the Social Security Act upon those that possess and have made lawfully valid applications for social security numbers. * * * My complaint is that Amzi Sherling, DDS discriminated against me based upon my “national origin.” He refused to reasonably accommodate my rights under the law by recklessly disregarding my rights as a Citizen of the United States of America.

This was effectuated by Amzi Sherling, DDS’s insistence that I 1115 allow myself to be treated as a non-resident alien and give up my rights to the full fruit of my labor . . . or I could not work for him. * * * It is my desire at this time to file a charge of unfair immigration-related em- ployment practice [sic] against Amzi Sherling, DDS for discriminating against me due to the characteristics and traits of my national origin, and that I would not allow Dr. Sherling, DDS to treat me as a non-resident alien. By transmittal dated December 16, 1995, John B. Kotmair, Jr. (Kotmair), as “the authorized representative of the injured party,” augmented Boyd’s September 30, 1995 OSC charging letter by filing a National Worker’s Rights Committee adaptation of the standard OSC Charge Form, which was assigned OSC Charge Number, 41–2. At ¶3, Kotmair stated that Sherling had “less than 15 employees, but more than 3.” At ¶9, Kotmair described the alleged discriminatory Unfair Employment Practice: Ms. Boyd submitted a Statement of Citizenship2 to her employer, Amzi Sherling, DDS, wherein she claimed not to be subject to the withholding of in- come taxes, since she is a citizen of the U.S. . . . [T]he withholding of income taxes is only imposed upon non-resident aliens, pursuant to 26 USC §1441 . . . Amzi Sherling, DDS, refused to honor this document [and thereby vi- olated Ms. Boyd’s rights.] . . .

Ms. Boyd also submitted an Affidavit of Constructive notice, in July, . . . since she could not submit a W–4 Form and in- stead submitted the Statement of Citizenship. . . . [Because the Secretary of the Treasury “did not respond as requested and required” to Ms. Boyd’s expressed desire “to no longer be affiliated with Social Security”] Ms. Boyd was now no longer a subject [sic] to the Social Security Act and the social security taxes im- posed in Subtitle C of the Internal Revenue Code. . . . Amzi Sherling, DDS re- fused to honor this document also [and thereby violated 8 U.S.C. §1324(b)(6) by committing document abuse as defined in 28 C.F.R. §44.200(a)(3)]. By an undated determination letter addressed to Kotmair as “rep- resentative” of Boyd and others, OSC advised that her charge and those of two other listed individuals were without merit: The Special Counsel has determined that there is no reasonable cause to be- lieve that these charges state a cause of action of either citizenship status dis- 2 This self-styled “Statement of Citizenship,” by which Boyd claimed not to be sub- ject to the withholding of income tax, is not to be confused with INS Forms N-560 or N–561, which are INS certificates of U.S. citizenship, documents suitable for verifying employment eligibility under 8 U.S.C. §1324a(b) and 8 C.F.R. §274a.2(b)(1)(v)(A)(2). 1116 crimination or national origin [sic] under 8 U.S.C. §1324b.

The Special Counsel has also determined that there is no reasonable cause to believe that they state a cause of action for document abuse under 8 U.S.C. §1324b(a)(6). OSC, therefore, declined to file a complaint on Boyd’s behalf, but ad- vised her that she might file a complaint directly in the Office of the Chief Administrative Hearing Officer (OCAHO) . On May 14, 1996, Kotmair filed a Complaint for Boyd pursuant to 8 U.S.C. §1324b. The Complaint was accompanied by a nota- rized “Privacy Act Release Form and Power of Attorney” dated December 6, 1995, which designated Kotmair and designees as her investigator apropos “the withholding of taxes (including but not limited to a Statement of Citizenship),” restricted to Dr. Sherling and the IRS “extra legem [?].” The obvious inadequacy of that power of attorney to provide representation before an admin- istrative law judge (ALJ) is cured by a August 26, 1996 filing by Kotmair of a Notice of Appearance supported by an August 14, 1996 power of attorney by Boyd of sufficient breadth and speci- ficity to authorize Kotmair to act as Boyd’s representative.

See OCAHO Rules of Practice and Procedure for Administrative Hearings at 28 C.F.R. §68.33(b)(6) (1996); see also Horne v. Hampstead, 6 OCAHO 884, at 4–5 (1996). The May 14, 1996 Complaint, signed by Kotmair, on OCAHO’s complaint format comprises entries in response to inquiries at se- quentially numbered paragraphs. Considered together, Boyd’s re- sponses to questions at ¶¶14, 16, and 17 characterize as discrimina- tory and abusive Sherling’s refusal to accept a “Statement of Citizenship” “asserting her rights as a U.S. Citizen not to be treated as an Alien for any reason or practice;” refusal to give credence to an “Affidavit of Constructive Notice” exempting Boyd from providing a Social Security Number and from tax withholding; insistence that Boyd provide a Social Security Number; and discharge “[f]or the rea- son of not having a Social Security Number, which subsequently made her a U.S. citizen who was not subject to the Internal Revenue Code.” The Complainant, however, declines to state that “other workers in . . . [Boyd’s] situation of different nationalities or citizenship were not fired” because, as Kotmair explains, there “were no others in her situation.” Complaint at ¶14(e). The Complainant requests back pay from July 26, 1995.

1117 OCAHO issued a Notice of Hearing (NOH) on June 12, 1996. On July 12, 1996, Wendell H. Cook, Jr., Esq., of Wells Marble & Hurst, PLLC, entered a Notice of Appearance as Sherling’s represen- tative, and Respondent filed his Answer. The Answer asserted the following defenses, inter alia: failure to state a claim upon which re- lief can be granted; the forum’s lack of personam and subject matter jurisdiction; denial that Respondent discriminated against Complainant; Boyd’s insubordination, evidenced by her “refusal to disclose her social security number and sign a W–4 form as required by federal law,” and “to provide information or execute documents re- quired by her employer;” lack of standing of natural-born citizens to sue under 8 U.S.C. §1324b; and Mississippi at-will employment law, under which Complainant, an at-will employee, was lawfully termi- nated. Sherling denied he refused Boyd’s documents.

Sherling re- quested dismissal with prejudice, attorneys’ fees, and expenses. On December 9, 1996, by letter dated November 22, 1996, Respondent’s counsel informed the Administrative Law Judge (ALJ) that “the parties have agreed to settle this case among themselves, pending the execution of a Release, and the approval and entry of an Order of Dismissal with Prejudice by the Court.” On January 3, 1997, Respondent’s counsel by letter dated December 18, 1996, transmitted to the ALJ an unexecuted copy of the “Release reflecting the settlement agreement.” The unexecuted release, while denying Sherling’s liability, nevertheless agrees to pay Boyd $2,110.20 in re- turn for relinquishment of any claims, past, present, or future, against Amzi R. Sherling, Individually, or as Amzi R. Sherling, D.D.S., P.A. . . . which arise from or pertain in any manner to Boyd’s employment at Amzi R. Sherling, D.D.S., no matter how styled or classified, or which were asserted, or which could have been asserted in . . .

OCAHO

Case No. 96–B00047. No executed agreement has been filed. Presumably, implementation awaits approval by the judge of the agreed disposition between the parties. For the reasons explained in this Decision and Order I am unable to approve that result.

II. Discussion and Findings A. A Forum Will Dismiss a Case Sua Sponte for Lack of Subject Matter Jurisdiction 1118 The Supreme Court has instructed that federal ALJs are “func- tionally comparable” to Article III judges. Butz v. Economou, 438 U.S. 478, 513 (1978). To the extent that reviewing courts character- ize the Article III trial bench as a court of limited jurisdiction, the ALJ is a fortiori a judge of limited jurisdiction subject to identical ju- risdictional strictures.

Winkler v. Timlin, 6 OCAHO 912, at 4 (1997); Horne v. Town of Hampstead, 6 OCAHO 906, at 5 (1997). “Subject matter jurisdiction deals with the power of the court to hear the plaintiff’s claims in the first place, and therefore imposes upon courts an affirmative obligation to ensure that they are acting within the scope of their jurisdictional power.” 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §1350 (2d ed. Supp. 1995).

The party asserting subject matter jurisdiction bears the burden of proving it. [T]he rule is well settled that the party seeking to invoke the jurisdiction of a federal court must demonstrate that the case is within the competence of that court. The presumption is that a federal court lacks jurisdiction in a particular case until it has been demonstrated that jurisdiction over subject matter exists. Thus the facts showing the existence of jurisdiction must be affirmatively al- leged in the complaint. Lowe v. Ingalls Shipbuilding, 723 F.2d 1173, 1177 (5th Cir.

1984) (quoting Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction §3422 at 45). A forum’s first duty is to determine subject matter jurisdiction be- cause “lower federal courts are courts of limited jurisdiction, that is, with only the jurisdiction which Congress has prescribed.” Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 376 (1940); see also United States v. Garner, 749 F.2d 281, 284 (5th Cir. 1985). “Federal courts are courts of limited jurisdiction by origin and continuing congressional design.

The rules of jurisdiction, which oc- casionally may appear technical and counterintuitive, are to be un- grudgingly obeyed.” Beers v. North American Van Lines, Inc., 836 F.2d 910, 913 (5th Cir. 1988). The federal forum may sua sponte de- termine subject matter jurisdiction. Johnston v. United States of America, 85 F.3d 217, 218 n.2 (5th Cir.

1996); Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994), cert. denied, 115 S.Ct. 189 (1994); Garner, 749 F.2d at 284; Christoff v. Bergeron Industries, Inc., 748 F.2d 297, 298 (5th Cir. 1984).

In so doing, the forum is not free to ex- 1119 pand or constrict jurisdiction conferred by statute. Willy v. Coastal Corp, 503 U.S. 131, 135 (1992). Nor can “the parties . . . create fed- eral subject matter jurisdiction either by agreement or consent.” Beers, 836 F.2d at 912. To determine subject matter jurisdiction, the forum must “construe and apply the statute under which . . . asked to act.” Chicot, 308 U.S. at 376.

Furthermore, federal forae “are without power to entertain claims otherwise within their jurisdiction if they are ‘so attenuated and un- substantial as to be absolutely devoid of merit.’” Hagans v. Lavine, 415 U.S. 528, 536 (1974) (quoting Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579 (1904 . A claim is “plainly unsub- stantial” where “obviously without merit” or where “its unsoundness so clearly results from . . . previous decisions . . . as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.” Hagans, 415 U.S. at 535 (internal quotations omitted) (citing Ex parte Poresky, 290 U.S. 30, 31–31 (1933 . Where, from the face of the complaint there is no reasonably conceivable basis on which relief can be granted, the forum is obliged to confront the failure of subject matter jurisdiction. In such cases, the Complaint should be dismissed.

MCI Telecommunications Corp. v. Credits Builders of America, Inc., 980 F.2d 1021, 1022 (5th Cir. 1993), cert. granted and judgment vacated, 508 U.S. 957 (1993), judgment reinstated, 2 F.3d 103 (5th Cir. 1993), cert. denied, 510 U.S. 978 (1993); Cinel, 15 F.3d at 1342. B. Complainant’s Claims of Discrimination on the Bases of Nationality and Citizenship Status and Document Abuse Are Dismissed Because This Forum Lacks Subject Matter Jurisdiction over Challenges to the United States Tax Code and the Social Security Act and over the Terms and Conditions of Employment and for Failure to State a Claim Upon Which Relief May Be Granted Under IRCA 1.

This Forum Lacks Subject Matter Jurisdiction Over Challenges to the United States Tax Code and the Social Security Act and Over the Terms and Conditions of Employment Respondent contends in his Answer that this forum lacks subject matter jurisdiction over the Complaint. Fed. R. Civ. P. 12(h)(3) com- pels dismissal of claims over which a court lacks subject matter jurisdiction: 1120 Whenever it appears by the suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. Fed. R. Civ. P. 12(h)(3); Jefferson Fourteenth Associates v. Wometco de Puerto Rico, 695 F.2d 524, 525 (11th Cir. 1983) (sua sponte dismissal is appropriate where a court lacks subject matter jurisdiction).

This proceeding stems from what can best be characterized as misapprehension that this forum’s jurisdiction is available to resolve disputes concerning an employee’s philosophic or political disagree- ment with obligations imposed by federal revenue and social secu- rity statutes or regarding employment terms and conditions. Such controversies are beyond reach of 8 U.S.C. §1324b, enacted by the Immigration Reform and Control Act of 1986 (IRCA), (Pub.

L. 99–603), amended by Pub.

L. 101–649, 104 Stat. 4978 (Nov.

29, 1990). Complainant is in the wrong forum for the relief she seeks. A congressional enactment to provide a remedy which addresses a par- ticular concern does not become a per se vehicle to address all claims of wrongdoing. This forum is one of limited jurisdiction, powerless to grant the relief Boyd seeks.

I am unaware of any theory on which to posit IRCA jurisdiction that turns on requests by an employer for ex- ecution of an Internal Revenue Service Form W–4 tax withholding form or a social security number. Boyd’s dispute is with the internal revenue and social security prerequisites to employment in this country, not with immigration law. a. Stringent Statutory Provisions Govern the Manner in Which a Taxpayer May Dispute Tax Withholding Title 26 U.S.C.A. §3402(a)(1) obliges “every employer making pay- ments of wages” to deduct and withhold taxes “at the source”—i.e., the place of employment. The employer’s duty to withhold taxes is mandatory. Maxfield v. United States Postal Service, 752 F.2d at 439.

The vehicle through which the employer computes withholding tax is IRS Form W–4, the subject of this dispute. Included in the infor- mation solicited by Form W–4 is the employee’s social security num- ber, which is the taxpayer identifying number for wage-earning indi- viduals. 26 C.F.R. §301.6109–1(a)(1)(ii). All employees must apply for and furnish a social security number to their employers, whether or not they wish to receive benefits.

26 C.F.R. §301.6109–1(d). An em- ployee who refuses to sign Form W–4 is still subject to withholding tax. United States v. Drefke, 707 F.2d 978 (8th Cir. 1983), cert. de- nied, Jameson v. United States, 464 U.S. 942 (1983).

An employer 1121 who fails to withhold the tax is liable for the tax. 26 U.S.C. §3403; 26 C.F.R. §31.3403–1. To facilitate the process of tax collection and to immunize employ- ers from suits stemming from performance of statutory duties, 26 U.S.C. §7421(a) prohibits suit for the purpose of restraining tax col- lection “in any court by any person” who has not followed adminis- trative procedures precedent best summarized as “pay now, sue later.” To resolve philosophical disputes regarding a tax’s validity, a tax- payer must follow a statutory procedure which has received the Supreme Court’s imprimatur: pay the tax, request a refund from the Internal Revenue Service, and, if the re- fund is denied, litigate the invalidity of the tax in federal district court. Cheek v. United States, 498 U.S. 192, 206 (1991) (enumerating Congressionally mandated procedures for challenging validity of tax code).

See 26 U.S.C. §§7422(a), 7422(b) (“No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed . . . until a claim for refund has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof ”) (“Such suit or proceed- ing may be maintained whether or not such tax, penalty, or sum has been paid under protest or duress”); Cohen v. United States, 297 F.2d 760, 772 (9th Cir. 1962), cert. denied, 369 U.S. 865 (1962) (Congress may require taxpayer to pay first and then litigate); Alaska Computer Brokers v. Morton, 1995 WL 653260, at 2 (D. Alaska 1995) (courts con- sistently reject taxpayer attempts to circumvent the “pay first, liti- gate later” rule by framing tax contests as collateral attacks). See also United States v. MacElvain, 858 F.Supp. 1096, 1100 (M.D.Ala.

1994), aff’d, 68 F.3d 486 (11th Cir. 1995) (because the law provides specific statutory procedures to challenge merits of federal tax liability, including filing suit for refund of taxes paid, frivolous self-help measures, including common law liens and complaints against federal officials and contract employees, are null and void); Schultz v. Stark, 554 F. Supp. 1219, 1220 (E.D.Wis. 1983) (suit clearly frivolous and attorneys’ fees awarded where, the duty of em- ployers to withhold taxes through Form W–4 being well-settled, members of a religious organization which counseled them not to pay income taxes pressed an action in district court; proper proce- 1122 dure for challenging tax liability is to file for refund with IRS, then sue under §7422(a) if denied); 13B CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE §3580 (2d ed.1984) (administrative claim for refund is jurisdictional prerequisite to bringing suit).

“No court is permitted to interfere with the federal government’s ability to collect taxes.” Intern. Lotto Fund v. Virginia State Lotto Dept., 20 F.3d 589, 591 (4th Cir. 1994). Courts are barred from so doing by 26 U.S.C. §7421(a), a statute popularly known as “The Anti- Injunction Act.” The Anti-Injunction Act states that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” 26 U.S.C. §7421(a).

The purpose of the Anti-Injunction Act is to protect “the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of judicial interference.” Bob Jones Univ. v. Simon, 416 U.S. 725, 736 (1974). The Anti-Injunction Act embodies “Congress’ long-standing policy against premature interference with the determination, assessment, and collection of taxes.” Jericho Painting & Special Coating, Inc. v. Richardson, 838 F.Supp. 626, 629 (D.D.C. 1993). The Anti-Injunction Act enjoins suit to restrain activities culmi- nating in tax collection.

Linn v. Chivatero, 714 F.2d 1278, 1282, 1286–87 (5th Cir. 1983); Hill v. Mosby, 896 F.Supp. 1004, 1005 (D.Idaho 1995). “Collection of tax” under the Anti-Injunction Act in- cludes tax withholding by employers.

United States v. American Friends Serv. Comm., 419 U.S. 7, 10 (1974). Suits to enjoin the collec- tion of the withholding tax are therefore “contrary to the express language of the Anti-Injunction Act.” Jericho Painting & Special Coating v. Richardson, 838 F.Supp. at 629. The Anti-Injunction Act mandates anticipatory withholding of taxes from all potential taxpayers, foreign and domestic, and is not limited to actions initiated after IRS assessments.

Intern. Lotto Fund v. Virginia State Lotto, 20 F.3d 589, 592. Even where the tax- payer is a foreign entity, possibly protected by an international treaty, and the collection of the tax may be legally dubious, the Anti- Injunction Act protects the collecting agent from suit. Yamaha Motor Corp., USA v. United States, 779 F.Supp.

610, 612 (D.D.C. 1993). 1123 Where a taxpayer has not followed statutory conditions precedent to suit, courts are deprived of jurisdiction. that taxes. . . . The . . . contention Section 7421(a) of the Internal Revenue Code prohibits suits brought to restrain the assessment or collection of [a Complainant] . . . is entitled to a court determination of his tax liability prior to any collection action has been rejected by several courts. See e.g. Kotmair, Jr. v. Gray, 74–2 USTC P 9492 (Md.

1974), aff’d per curiam [74–2 USTC P 9843], 505 F.2d 744 (4th Cir. 1974). The plaintiff has an adequate remedy at law pursuant to the tax refund procedure set forth in Section 7422 of the Internal Revenue Code. . . . In order to contest the merits of a tax . . . a taxpayer may file an ad- ministrative claim for a refund after payment of the tax.

Internal Revenue Code, §7422. The administrative claim must be filed and denied prior to fil- ing . . . [an] action in the federal district court. Black v. United States [76 1 USTC P 9383], 534 F.2d 524 (2d Cir. 1976). [Where] the plaintiff failed to meet this jurisdictional prerequisite . . . the [c]ourt is without jurisdiction.

Melechinsky v. Secretary of the Air Force, and Director, Internal Revenue Service, 1983 WL 1609, at 2 (D. Conn. 1983). See also Tien v. Goldberg, 1996 WL 751371, at 2 (2d Cir. 1996); Humphreys v. United States, 62 F.3d 667, 672 (5th Cir.

1995). There is a judicially-created exception to the Anti-Injunction Act where, viewing facts and law in a light most favorable to the govern- ment, the government could not possibly prevail in a collection ac- tion, if the court in which suit is filed appropriately exercises equity jurisdiction over the subject of the suit. Enochs v. Williams Pckg & Nav. Co., 370 U.S. 1, 7 (1962).

Boyd v. Sherling is not that case, be- cause Boyd has no judicially cognizable grounds on which to predi- cate her refusal to have tax withheld. In the United States Court of Appeals for the Fifth Circuit, the court with appellate jurisdiction over this action, a district court lacks jurisdiction to hear claims that an employer has withheld dis- puted taxes unless the taxpayer has followed administrative condi- tions precedent to suit. Zernial v. United States, 714 F.2d 431, 434 n.4 (5th. Cir.

1983) (citing Stonecipher v. Bray, 653 F.2d 398 (9th Cir. 1981), cert. denied, 454 U.S. 1145 (1982 . Those who ignore mandatory procedures precedent to suit, and who persist in frivo- lously litigating in defiance of the Anti-Injunction Act, have been found liable for costs and damages. Capps v. Eggers, 782 F.2d 1341 (5th Cir.

1986). Whether through ignorance of the law, mistake, or good faith be- lief that she is the exception to the rule that all U.S. citizens and res- 1124 idents are liable for taxes, Boyd in filing a §1324b action circum- vents stringent statutory jurisdictional prerequisites to suit and cannot succeed. She did not pay the disputed tax, apply for a refund, or sue in federal district court after being denied. §1346(a)(i) But, even had Boyd followed the correct procedures, this forum lacks subject matter jurisdiction in tax matters.

Boyd seeks to avail herself of this forum of limited jurisdiction in lieu of tax court or fed- eral district court, appropriate fora to hear tax matters. See 28 original U.S.C. jurisdiction . . . of any civil action against the United States for the recovery of any internal revenue tax alleged to have been erro- neously or illegally assessed”). This forum, reserved for those “ad- versely affected directly by an unfair immigration-related employ- ment practice,” is powerless to hear tax causes of action, whether or not clothed in immigration guise. 28 C.F.R. §44.300(a) (1996). shall have (“district court Not only has Boyd chosen the wrong forum in which to bring a tax complaint, she has elected to sue the wrong party.

She charges not the United States, the creator and enforcer of the Internal Revenue Code, who consents to suit and waives sovereign immunity where the aggrieved taxpayer has fulfilled mandatory conditions prece- dent, but her employer, who is immune from suit in the performance of his statutory duty to withhold taxes. 26 U.S.C. §3403 (“The em- ployer . . . shall not be liable to any person” when withholding tax from wages); 26 C.F.R. §31.3403(a)(1); Maxfield v. United States Postal Service, 752 F.2d at 439. Even were this forum not limited to causes of action appropriate to §1324b relief, it is explicitly deprived of subject matter jurisdic- tion by the Anti-Injunction Act. Boyd fails to transform her sow’s ear of a tax challenge into the silk purse of an immigration-related un- fair employment practice complaint by describing it as an immigra- tion-related unfair employment practice.

This is not an alternative tax tribunal empowered to short cut stringent statutory conditions precedent to suit. Boyd can obtain no relief here by disguising her tax complaint as an immigration-related cause of action; neither can she prevail against the employer as a proxy for the United States. b. Citizens and Aliens Alike Are Subject to Internal Revenue Code Obligations 1125 All United States citizens and alien residents are required to file tax returns, subject to de minimis exceptions. Individuals obliged to file returns specifically include: (i) A citizen of the United States, whether living at home or abroad; (ii) A resident of the United States, even though not a citizen thereof, or (iii) An alien who is a bona fide resident of Puerto Rico during the entire tax- able year. 26 C.F.R. §1.6012–1(a)(i)—(iii).

Even non-resident aliens are subject to tax withholding on income derived from U.S. sources under Internal Revenue Code §1441(a). Intern. Lotto Fund v. Virginia State Lottery, 20 F.3d at 590. Employers must withhold tax from both citizen and alien employ- ees’ wages “at the source” through the mechanism of IRS Form W–4.

26 U.S.C. §3402(a)(1); 26 C.F.R. §§31.3401(a)–1, 31.3402(b)–1, 31.3402(f)(5)–1(a). An employer who fails to collect the withholding tax is liable. 26 U.S.C. §3403 (“the employer shall be liable for the payment of the tax required to be deducted and withheld”); 26 C.F.R. §31.3403–1. To identify the wage-earner, Form W–4 includes a block for the employee’s social security number.

In the case of an individ- ual wage-earner, the employee’s social security number is also his taxpayer identification number. 26 C.F.R. §301.6109–1(a)(1) (ii). A wage-earner entitled to a “social security number [must use it] for all tax purposes . . . even though . . . a nonresident alien.” 26 C.F.R. §301.6109–1(d)(4). An individual who provides a statement related to Form W–4 for which there is no reasonable basis “which results in a lesser amount of income tax actually deducted and withheld than is properly allow- able” is subject to a civil money penalty of $500.

26 C.F.R. §31.6682–1 (False Information with Respect to Withholding). Boyd contests Sherling’s mandatory statutory duty to withhold taxes from her wages. Boyd also denies her statutory obligation to pay taxes. Boyd requests that her employer be assessed a monetary penalty for attempting to comply with his statutory obligations.

Boyd’s request is without legal authority. To challenge the validity of a withholding tax, employees, whether citizens or resident aliens, must follow stringent statutory proce- 1126 dures precedent. Before suing for a tax withheld, the employee must pay the tax, apply for a refund, and, if denied, sue in federal district court. Cheek v. United States, 498 U.S. at 206.

Such procedures precedent do not violate the employee’s rights to due process. Cohn v. United States, 339 F.Supp. 168, 169 (E.D.N.Y., 1975). “[T]je right of the United States to exact payment and to relegate the taxpayer to a suit for recovery is paramount.” Id. Title 26 U.S.C. §§7421(a), 7422(a), and 7422(b) apply to everyone: [N]o suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person . . . until a claim for refund or credit has been duly filed with the Secretary. . . . * * * PROTEST OR DURESS.—Such suit or proceeding may be maintained whether or not such tax . . . has been paid under protest or duress.

26 U.S.C. §§7421(a), 7422(a)(b) (emphasis added). Non-resident aliens, like U.S. citizens and resident aliens, have long been subject to withholding tax. Commissioner of Internal Revenue v. Wodehouse, 337 U.S. 369, 380, 388 n.11, 391 n.13 (1949); Korfund Co., Inc. v. C.I.R., 1 T.C. 1180 (1943). The Internal Revenue Code mandates that tax be withheld from even non-resident aliens and foreign corporations’ income to the extent that their income is derived from U.S. sources.

26 U.S.C. §1441(a); C.J.S. Internal Revenue §§1149, 1151. Kotmair’s characterization of 26 U.S.C. §1441 in ¶9 of the December 16, 1995 OSC supplemental charging form as absolving U.S. citizens of their duty to pay income tax is misleading and inac- curate. Section 1441 does not, as Kotmair states, impose the with- holding of taxes only upon non-resident aliens. Rather, Section 1441 imposes withholding taxes even on non-resident aliens whose in- comes are derived from U.S. sources.

Title 26 C.F.R. §1.1441–5(a) provides an exemption from nonresident alien tax withholding for U.S. citizens and aliens residing in the United States through the device of a written statement of U.S. citizenship or residency, but it does not relieve U.S. citizens and resident aliens from paying taxes they are obligated to pay, or from having these taxes withheld from their wages. 1127 By its own terms, 26 C.F.R. §1.1441–5(a) instructs only with re- spect to withholding tax on nonresident aliens, foreign corporations and tax-free covenant bonds. Kotmair’s argument, based on “Withholding of Tax on Nonresident Aliens, ” a section of the Code of Federal Regulations completely irrelevant to Boyd, a U.S. citizen and resident of Mississippi, is at best confused. Because the statutorily delineated procedures for disputing with- holding taxes do not involve this forum of limited jurisdiction, Boyd’s claim must be dismissed for want of subject matter jurisdiction.

This forum of limited jurisdiction is without power to grant relief from the Internal Revenue Code and related sections of the Code of Federal Regulations. It is barred from such exercise both by the limi- tations inherent in its own mandate and by the Anti-Injunction Act. c. All Employees, Citizens and Aliens Alike, Must Obtain a Social Security Number and Contribute to Social Security The constitutionality of the Social Security Act has long been judi- cially acknowledged. Helvering v. Davis, 301 U.S. 619, 644 (1937); Charles C. Steward Mach. Co. v. Davis, 301 U.S. 548, 590 (1937).

The Supreme Court has held social security’s withholding system uni- formly applicable, even where an individual chooses not to receive its benefits: The tax system imposed on employers to support the social security system must be uniformly applicable to all, except as Congress provides explicitly otherwise. United States v. Lee, 455 U.S. 252, 261 (1982) (statutory exemption for self-employed members of religious groups who oppose social se- curity tax available only to the self-employed individual and un- available to employers or employees, even where religious beliefs are implicated). We note here that the statute compels contributions to the system by way of taxes; it does not compel anyone to accept benefits. Lee, 455 U.S. at 261 n.12.

The Court has found “mandatory participation . . . indispensable to the fiscal vitality of the social security system.” Lee, 455 U.S. at 258. 1128 “[W]idespread individual voluntary coverage under social security. . . . would undermine the soundness of the social security program.” S.Rep. No. 404, 89th Cong., 1st Sess., pt. 1, p. 116 (1965), U.S. Code Cong. & Admin. News (1965), pp. 1943, 2056.

Moreover, a comprehensive national security program providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to administer. Id. In ¶9 of Boyd’s adaptation of the OSC charge form, Kotmair ar- gues that one may opt out of social security. The Supreme Court has held otherwise. Although an employee may decline benefits, an em- ployee must submit to deductions.

Lee, 455 U.S. at 258, 261 n.12. Citizens and alien wage-earners alike are obligated to obtain social security numbers (also known as individual “taxpayer identification numbers”) and to provide them. 26 C.F.R. §301.6109–1(a)(1)(ii)(D), (b)(2), (d); 8 U.S.C. §§1304(f), 1324(a)(1)(C)(i). In her September 30, 1995 charging letter to OSC, Boyd stated that she renounced her social security number and that Sherling’s refusal to acknowledge her renunciation, evidenced by his insistence that she complete IRS Form W–4, constitutes discriminatory conduct implicating IRCA.

The Supreme Court, however, has found “manda- “indispensable.” Lee, 455 U.S. at 258. tory participation” Furthermore, all U.S. wage earners must properly complete IRS Form W–4, a lynchpin in the regimen. Cheek, 498 U.S. at 194. Because both citizens and resident aliens must comply, an em- ployer’s insistence that an employee complete IRS W–4 does not imply discrimination. Federal courts have rejected similar arguments, even when couched as free exercise of religion challenges.

Hover v. Florida Power & Light Co., Inc., 1994 WL 765369, at 5–6 (S.D.Fla. 1994) (granting summary judgment for employer who declined to create alternative taxpayer identification number for employee who refused to provide social security number, the “mark of the beast,” because granting em- ployee’s request would violate federal regulations). In any event, challenges to the Social Security Act and the statu- tory requisites for its implementation do not properly implicate ALJ jurisdiction under 8 U.S.C. §1324b. For the reasons described in II B.1, a—f, Boyd’s complaint is dis- missed for want of subject matter jurisdiction.

1129 d. The Immigration Reform and Control Act of 1986 (IRCA) Does Not Reach Terms and Conditions of Employment Section 102 of IRCA, enacted a new antidiscrimination cause of action, amending the Immigration and Nationality Act (INA) by adding Section 274B, codified as 8 U.S.C. §1324b. Section 102 was enacted as part of comprehensive immigration reform legislation to accompany Section 101, which, codified as 8 U.S.C. §1324a, forbids an employer from hiring, recruiting, or referring for a fee, any alien unauthorized to work in the United States. Section 1324b was in- tended to overcome the concern that, as a result of employer sanc- tions compliance obligations introduced by §1324a, people who looked different or spoke differently might be subjected to conse- quential workplace discrimination.3 President Ronald Reagan’s formal signing statement observed that “[t]he major purpose of Section 274B is to reduce the possibility that employer sanctions will result in increased national origin and alienage discrimination and to provide a remedy if employer sanc- tions enforcement does have this result.”4 As understood by the EEOC (Notice No.–915.011, Responsibilities of the Department of Justice and the EEOC for Immigration-Related Discrimination (Sept. 4, 1987 : [c]onsistent with its purpose of prohibiting discrimination resulting from sanc- tions, [§1324b] only covers the practices of hiring, discharging or recruitment or referral for a fee.

It does not cover discrimination in wages, promotions, em- ployee benefits or other terms or conditions of employment as does Title VII. See Tal v. M. L. Energia, Inc., 4 OCAHO 705, at 14 (1994) (holding §1324b relief limited to “hiring, firing, recruitment or referral for a fee, retaliation and document abuse”). 3 See “Joint Explanatory Statement of the Committee of Conference,” Conference Report, IRCA, H.R. Rep. No. 99–1000, 99th Cong., 2d Sess., at 87 (1986), reprinted in 1986 U.S. Code Cong. & Admin. News 5840, 5842.

4 Statement by President Reagan upon signing S. 1200, 22 Weekly Comp. Pres. Docs. 1534, 1536 (Nov.

10, 1986). See Williamson v. Autorama, 1 OCAHO 174, at 1173 (1990), 1990 WL 515872 (“Although a Presidential signing statement falls outside the ambit of traditional legislative history, it is instructive as to the Administration’s un- derstanding of a new enactment”). Accord, Kamal-Griffin v. Cahill Gordon & Reindel, 3 OCAHO 568, at 14 n.11 (1993), 1993 WL 557798. 1130 Among the terms and conditions of employment that an employer may legitimately and nondiscriminatorily impose is the requirement that the employee provide a social security number.

Toussaint v. Tekwood Associates, 6 OCAHO 892, at 16–17 (1996). “Nothing in the logic, text, or legislative history of the Immigration Reform and Control Act limits an employer’s ability to require a social security number as a precondition of employment.” Lewis v. McDonald’s Corp., 2 OCAHO 383, at 4 (1991). See also Winkler v. Timlin, , at 11–12 (1997). Furthermore, as Respondent contends, Mississippi is a state in which the “terminability at will” employment doctrine still holds sway.

This doctrine gives an employer a relatively free hand in im- posing terms and conditions of employment. Mississippi long has adhered to the common law rule of terminability at will, wherein an employment relationship may be terminated at will by either party. . . . Therefore, “either the employer or the employee may have a good reason, a wrong reason, or no reason for terminating the employment contract.” Empiregas, Inc. of Kosciusko v. Bain, 599 So.2d 971, 974 (Miss. 1992) (quoting Kelly v. Mississippi Valley Gas Co., 397 So.2d 874, 875 (Miss.

1981) and citing Perry v. Sears, Roebuck & Co., 508 So.2d 1086, 1088 (Miss. 1987) and Butler v. Smith & Tharpe, 35 Miss. 457, 464 (Miss. 1858 .

See also Bobbitt v. Orchard, Ltd., 603 So.2d 356, 360–361 (Miss. 1992). Under Mississippi common law, an employer may fire an “at-will employee for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal wrong.” Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057, 1060 (5th Cir. 1981) (cit- ing Blades, Employment at Will vs. Individual Freedom, 67 Colum.L.Rev. 1404, 1405 (1967 .

See also Watkins v. United Parcel Service, Inc., 797 F.Supp. 1349, 1356, 1358 (S.D. Miss. 1992), aff’d, 979 F.2d 1535 (5th Cir. 1992); Samples v. Hall of Mississippi, Inc., 673 F.Supp.

1413, 1416 (N.D.Miss. 1987). Mississippi only recently recognized a public policy exception to the terminability at will doctrine. McArn v. Allied Bruce-Terminex Co., Inc., 626 So.2d 603, 607 n.1 (Miss.

1993). This public policy ex- ception allows damages in tort for (1) an employee who refuses to participate in an illegal act and for (2) an employee who is dis- charged for reporting an illegal act. Id. at 607. The public policy in- voked by the exception must be “clearly defined, and well estab- 1131 lished,” grounded in “legislation, administrative rules, regulations . . . or judicial decisions.” Perry v. Sears, Roebuck, Inc., 506 So.2d at 1089.

The public policy exception applies only to criminal, not civil, illegalities. Rosamond v. Pennaco Hosiery, Inc., 942 F.Supp. 279, 285 (N.D.Miss. 1996).

Boyd cannot invoke the public policy exception to Mississippi’s ter- minability at will doctrine. Boyd cannot argue that she refused to participate in a criminally illegal act, or claim that she was dis- charged for reporting a criminally illegal act. Her refusal to com- plete IRS Form W–4 or to provide her social security number impli- cate no violation of public policies by the employer. To the contrary, her refusal violates statutory, regulatory, and judicially articulated public policy.

As a consequence, she cannot avail herself of the public policy exception to Mississippi’s terminability at will doctrine. In Mississippi, insubordination may constitute per se grounds for dismissal. Perry v. Sears Roebuck, Inc., 508 So.2d at 1089 (citing Merchant v. Pearl Mun. Sep.

School Dist., 492 So.2d 959 (Miss. 1986); Noxubee Co. Bd. of Ed. v. Givens, 481 So.2d 816 (Miss. 1985). Absent a constitutional or statutory wrong, which Boyd fails to al- lege, it may be speculated that no court is empowered to grant her the relief she seeks.

Courts have consistently refused to characterize as a constitutional infraction an employer’s refusal to accommodate an employee who will not provide a social security number. Hover v. Florida Power & Light, 1994 WL 765369, at 5–6 (S.D.Fla. 1994); Hover v. Florida Power & Light, 1995 WL 91531, at 2, 4 (S.D. Fla. 1995), aff’d, 101 F.3d 708 (11th Cir.

1996) (employee who refused to provide social security number because it was the “mark of the beast” failed to prove discrimination where employer refused to ac- commodate him; employee’s insistence that employer violate federal regulations to accommodate him was unreasonable). In any event, Sherling committed no wrong when he fired Boyd for refusing to provide a social security number and to complete IRS Form W–4 because nothing in §1324b reaches terms and conditions of employment, and because a Mississippi employer may insist on any term or condition of employment that does not violate a specific articulated public policy. Boyd, therefore, fails to allege a cause of ac- tion cognizable under IRCA. 1132 e. An Employer Only Commits Document Abuse by Requiring an Employee To Provide More or Different Documents Than Those Required by the INS, or by Insisting on Production of a Particular INS-Prescribed Document For Purposes of Form I–9 Employment Eligibility Verification An employer’s refusal to honor documents other than those speci- fied by 8 U.S.C. §1324a(b)(1)(C) does not constitute discriminatory document abuse, nor does refusal to accept documents presented for other purposes.

Lee v. Airtouch Communications, 6 OCAHO 901, at 11–12 (1996). Section 101 of IRCA, 8 U.S.C. §1324a, makes it unlawful to hire an individual without verifying her eligibility for employment in the United States. 8 U.S.C. §1324a(b). To comply with Immigration and Naturalization Service requirements, an employer must check the documentation of all employees hired after November 6, 1986, and must complete INS Form I–9 within a specified date of hire.

The purpose of INS Form I–9, as described in the August 23, 1991 Federal Register, is to ensure that only employment-eligible individuals are hired for employ- ment in the United States. The employment verification system is based upon the presentation of documents. Recognizing the possibility of attempts to cir- cumvent the law, and in anticipation of the presentation of fraudulent docu- ments, the Form I–9 was drafted to contain other indicators that allow the Service to monitor compliance. The employee’s address, date of birth, and social security number are just such indicators.

These entries allow the Service to conduct post-inspection records checks to ferret out unauthorized aliens using counterfeit and fraudulent documents. Control of Employment of Aliens, 56 Fed. Reg. 41,771 (1991) (ex- plaining text to be codified at 8 C.F.R. §274a). Accordingly, the §1324a employment verification scheme provides a comprehensive system, which stipulates categories of documents acceptable to establish identity and work authorization. 8 U.S.C. §1324a(b) and 8 C.F.R. §274a.2(b)(1)(v).

Choosing from specific docu- ments in INS prescribed lists, the employee must produce and pre- sent documents to establish identity and employment authorization. The only documents suitable for these purposes are: 1133 LIST A (Documents that Establish Both Identity and Eligibility): U.S. Passport; INS Form N–560 or N–561 (INS certificates of U.S. citizenship)5; INS Form N–550 or N–570; Unexpired foreign passport, with I–551 stamp or at- tached INS Form I–94; INS Form I–151 or I–551; INS Form I–688; INS Form I–688A; INS Form I–327: INS Form I–571; INS Form I–688B; LIST B (Documents that Establish Identity): Driver’s license or state or outly- ing possession of the United States photo ID; federal state or local government photo ID; School photo ID; voter registration card; U.S. military card or draft record; military dependent ID; U.S. Coast Guard Merchant Mariner Card; Native American tribal document; Canadian driver’s license; and—for persons under 18 who are unable to present documents listed above, school records or report cards; clinic, doctor or hospital record; or day-care or nursery record. LIST C (Documents that Establish Employment Eligibility): U.S. social security card; Form FS–545 or Form DS–1350; original or certified copy of a birth cer- tificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal; Native American tribal document; INS Form I–197; INS Form I–179; and an unexpired employment authorization document issued by the INS. INS Handbook for Employers: Instructions for Completing Form I–9, M–274 (Rev. 11/21/91) N. To satisfy her employment eligibility, an employee can chose only from among the listed documents.

The employee is not free to improvise, nor is the employer free to accept im- provisations. Subject to this limitation, the employee may choose which pre- scribed documents to submit. When reviewing the employee’s sub- missions, the employer must accept any prescribed document which appears reasonably genuine on its face. The Immigration Act of 1990 effectively amended §1324b to clarify that an employer’s refusal to accept prescribed documents or demand that the employee submit a particular prescribed document in order to complete the Form I–9 vi- olates IRCA’s antidiscrimination provisions.

See Immigration Act of 1990, P.L. 101–649, 104 Stat. 4978 (Nov. 29, 1990), as amended by The Illegal Immigration Reform and Immigrant Responsibility Act 5 These official INS certificates of citizenship, not to be confused with the construc- tive affidavit Boyd invokes, consist of certificates issued by the INS to individuals who: 1) derived U.S. citizenship through parental naturalization; 2) acquired U.S. citizenship at birth abroad through a U.S. parent or parents; or 3) acquired citizenship through application by U.S. citizen adoptive parent(s); and who, pursuant to §341 of the Act, have applied for a certificate of citizenship. INS Handbook for Employers: Instructions for Completing Form I–9, M–274 (Rev. 11/21/91) N, p. 22. 1134 of 1996 (IIRIRA), P.L. 104–208, 110 Stat. 3009 (Sept.

30, 1996); 8 U.S.C. §1324b(a)(6). In sum, §1324b and the administrative enforcement and adjudica- tion modalities authorized to execute and adjudicate the national policy it evinces are not sufficiently broad to implicate terms and conditions of employment or address attacks on the tax and social security systems. Nothing in Boyd’s pleading engages the employ- ment verification system. Where §1324b has been held available to address national origin and citizenship status discrimination with- out implicating the I–9 process, the aggrieved individual was found to have been treated differently from others.

United States v. Mesa Airlines, 1 OCAHO 74, at 466–467 (1989), appeal dismissed, Mesa Airlines v. United States, 951 F.2d 1189 (11th Cir. 1991). “IRCA does not create a blanket prohibition on employer docu- ment requests.” Toussaint v. Tekwood, , at 19. See also Zabala Vineyards, 6 OCAHO 830, at 14–15 (1995).

Where an em- ployer requests a document, including a social security card, for pur- poses other than work eligibility verification, the employer is well within his rights. Toussaint v. Tekwood, , at 19. Sherling did not violate §1324b by asking Boyd to provide her social security number for the purposes of completing IRS Form W–4; in- deed, Sherling was statutorily obligated to so do. Similarly, Sherling was not prohibited by §1324b from declining Boyd’s improvised “Statement of Citizenship.” Nothing in §1324b obliges an employer to accept an alternate document created by the employee.

In this case, if Sherling refused to accept it (which the Answer to the Complaint does not concede), he did not violate IRCA. Sherling requested that Boyd complete IRS Form W–4 and pro- vide her social security number for the purpose of withholding taxes. Sherling was statutorily obligated to do so. Boyd does not allege that any other employee was treated differently.

This is not document abuse under IRCA. f. The Gravamen of Boyd’s Claim Is a Challenge to the Internal Revenue Code and the Social Security Act; Her Complaint Is Therefore Beyond the Reach of This Forum’s Limited Subject Matter Jurisdiction It is established OCAHO jurisprudence that administrative law judges have §1324b jurisdiction only in those situations where the 1135 employee has been discriminatorily rejected or fired. To similar ef- fect, jurisdiction over document abuse can only be established by proving that the employer requested a particular document from a list of prescribed sources for the purpose of satisfying work eligi- bility under §1324a(b). 8 U.S.C. §1324b(a)(6). A complaint of citizenship status and national origin discrimina- tion which fails to allege discriminatory rejection or discharge is insufficient as a matter of law.

Failure to allege a discriminatory in- jury compels a finding of lack of subject matter jurisdiction. This is so because the power of the administrative law judge is limited to discriminatory hiring or discharge and does not embrace the terms of employment. Title 8 U.S.C. §1324b simply does not reach employ- ment conditions or controversies, and its invocation absent discrim- inatory injury cannot confer jurisdiction. Horne v. Town of Hampstead, , at 5–6 (1997); Naginsky v. Dept. of Defense, et al., 6 OCAHO 891, at 29 (1996) (citing Westendorf v. Brown & Root, Inc., 3 OCAHO 477, at 11 (1993 ; Ipina v. Michigan Dept. of Labor, 2 OCAHO 386, at 11–12 (1991); Huang v. Queens Motel, 2 OCAHO 364, at 13 (1991).

In ¶14(e) of her Complaint, Boyd acknowledges that Sherling did not retain other employees “of different nationalities or citizenship” who refused to comply with his regimen of withholding tax and social secu- rity deductions, but asserts that her protest was unique. Nevertheless, Boyd thereby concedes that Sherling did not discriminate. Boyd’s ad- mission that Sherling applied his withholding regimen even-handedly to citizens and aliens alike belies any cognizable claim under IRCA. Boyd’s challenges to the Internal Revenue Code and the Social Security Act do not invite the inference that Respondent discrimi- nated on the basis of citizenship or national origin in firing her.

I do not credit Boyd’s theory that only non-citizens must produce social security numbers and be amenable to tax withholding. But even were that the law, Boyd’s claim is not properly within this forum’s jurisdiction. Boyd’s contention that as a U.S. citizen she is less amenable to tax withholding or social security practice and proce- dure than is a non-citizen is immaterial here. As a tribunal of lim- ited jurisdiction, this forum is powerless to respond to allegations that tax and social security compliance is offensive.

In Horne v. Town of Hampstead, , at 4–5 and in Winkler v. Timlin, , at 11, the employee’s refusal to 1136 comply with the employer’s adherence to the income tax and social security regimen was held insufficient to state an 8 U.S.C. §1324b cause of action. Like Horne and Winkler, the present dispute be- tween the parties does not implicate the law prohibiting citizenship or national origin discrimination, but instead concerns whether an employee is subject to tax and social security withholding. Boyd’s assertion that Sherling committed document abuse in re- questing her social security number and in refusing to accept docu- ments other than those required by the INS as part of the employ- ment eligibility system does not constitute a credible claim of document abuse under IRCA. IRCA does not prohibit an employer from requiring a social security number as a condition of employ- ment.

Neither does it require an employer to accept an improvised “Statement of Citizenship” “asserting . . . [a right] as a U.S. Citizen not to be treated as an Alien for any reason or purpose” or to give credence to an “Affidavit of Constructive Notice” regarding exemp- tion from tax and social security obligations, such as those presented by Boyd to Sherling. Complaint at ¶17(a). Winkler v. Timlin, , at 12 (1997); Horne, , at 8; Toussaint v. Tekwood Associates, Inc., , at 18–19, 1996 WL 670179, at 13–14; Lewis v. McDonald’s Corp., 2 OCAHO 383, at 5. Boyd admits in ¶9 of her OSC Charge that this dispute stems from Sherling’s request for a social security number to complete IRS Form W–4, a tax withholding document and from Sherling’s refusal to ac- cept Boyd’s proferred improvised document.

Nowhere does she impli- cate INS Form I–9, the INS employment eligibility verification docu- ment. Patently, Boyd’s disagreement over employee withholding obligations is outside the jurisdictional parameters of 8 U.S.C. §1324b. Boyd v. Sherling has everything to do with Boyd’s unwillingness to participate in federal income tax and social security withholding and nothing to do with Sherling’s obligations under 8 U.S.C. §1324b. By her own admission, Boyd was neither denied employ- ment nor discriminatorily discharged.

Nor was Boyd asked to pro- duce more or different documents than those prescribed by the INS as part of the I–9 employment eligibility verification system. For these reasons, Boyd’s complaint must be dismissed for want of sub- ject matter jurisdiction. Section 1324b relief is unavailable for claims relating to Internal Revenue Code interpretations and Social Security Act challenges. 1137 For the reasons described at II.B.1, a—f, Boyd’s claims of discrimi- nation based on national origin and citizenship status and of docu- ment abuse are dismissed as beyond the reach of this forum’s sub- ject matter jurisdiction.

2. Complainant’s Claims of Discrimination Based on National Origin and Citizenship Status and of Document Abuse Are Dismissed for Failure to State a Claim on Which Relief May Be Granted Under 8 U.S.C.A. §1324(b) a. Complainant Fails To State a Claim of Discrimination Based on National Origin Administrative law judges exercise jurisdiction over national ori- gin claims in unfair immigration-related employment discrimination cases involving employers of four to fourteen employees. 8 U.S.C. §1324b(a)(2). Where an employer employs fifteen or more employees, national origin claims fall within the jurisdiction of the Equal Employment Opportunity Commission (EEOC).

In her charging let- ter to OSC, Boyd referred to prior EEOC adjudication of the same charge. Boyd stated that the EEOC dismissed her charge for lack of jurisdiction. It may be speculated that EEOC dismissed because Sherling employed less than the requisite number of employees. Boyd’s subsequent OSC Charge does not suggest an EEOC filing on the facts of this case.

A national origin discrimination complaint dis- missed by the EEOC because the employer employed between four and fourteen employees may be adjudicated by an ALJ. Boyd has al- leged that Sherling employed “less than 15 employees, but more than 3,” a claim not in dispute. Although Boyd may have properly invoked ALJ jurisdiction over a national origin claim, she fails to state a claim of national origin dis- crimination. A claim which fails to specify Complainant’s national origin is insufficient as a matter of law.

Toussaint v. Tekwood, , at 15. Specifically, Boyd has not identified her national origin. Instead, she repeatedly refers to her national origin as that of a U.S. citizen. Discrimination against United States citizens is ad- dressed separately.

8 U.S.C. §1324b(a)(1)(B). Boyd’s argument that she was discriminated against on the basis of national origin, volleyed in ¶¶14, 16, and 17 of her complaint, is based on Sherling’s refusal to accept her “Statement of Citizenship” “asserting her rights as a U.S. citizen not to be treated as an Alien 1138 for any reason or practice” and on her attempted revocation of her social security number, “which subsequently made her a U.S. citizen who was not subject to the Internal Revenue Code.” These allega- tions, however, relate only to Boyd’s claims of document abuse and citizenship status discrimination. Because by its own terms Boyd’s case is based soley on her status as a United States citizen, her claim of national origin discrimination is dismissed for failure to state a claim upon which relief can be granted. b. Complainant Fails To State a Claim of Discrimination Based on Citizenship Status It is the complainant’s burden to prove citizenship discrimination. Winkler v. Timlin, , at 8; Toussaint v. Tekwood, , at 16 ; United States v. Mesa Airlines, 1 OCAHO 462, 500.

To state a prima facie case of citizenship discrimination, “a com- plaint must contain either direct or inferential allegations respect- ing all material elements necessary to sustain a recovery under some viable legal theory.” Lee v. Airtouch Communications, , at 10 (citing L.R.L. Properties v. Portage Metro. Hous. Auth., 55 F.3d 1097, 1103 (6th Cir. 1995 .

Although well-pleaded al- legations of fact are taken as true, legal conclusions and unsup- ported inferences obtain no deference. Disparate treatment is the heart of discrimination. For a claim to constitute discrimination “[t]he employer [must] . . . treat some peo- ple less favorably than others” because of a protected characteristic. Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977).

“Where cit- izenship status is the forbidden criterion, there must . . . be some claim that the individual is being treated less favorably than others because of his citizenship status.” Lee v. Airtouch Communications, , at 10. Where an employer treats all employees in the same way, there can be no discrimination. In order for Sherling’s conduct to have violated 8 U.S.C. §1324(b)(a)(1)(B), Sherling would need to have treated Boyd differ- ently from other employers because she was a U.S. citizen. To pre- vail, Boyd would need to prove that she was accorded less favor- able treatment than others because of her citizenship.

Winkler v. Timlin, , at 8; Westendorf v. Brown & Root, , at 6–7 (1992). 1139 Boyd claims that she was discriminated against on the basis of her U.S. citizenship when Sherling fired her because she refused to complete IRS Form W–4 and to provide the social security number it requires. Complaint at ¶¶14, 16, and 17. Boyd argues that because she negated her social security number, “which subsequently made her a U.S. citizen,” she was “not subject to the Internal Revenue Code.” Complaint at ¶14(b).

Boyd states that Sherling fired her when, in lieu of the requisite social security number requested as part of the IRS Form W–4 regimen, she submitted an unofficial, im- provised “Statement of Citizenship” “asserting her rights as a U.S. Citizen not to be treated as an Alien for any reason or practice,” and because Sherling refused to give credence to an unofficial, impro- vised “Affidavit of Constructive Notice” exempting Boyd from provid- ing a social security number and from tax withholding. Complaint at ¶¶14, 16, and 17. Boyd, however, admits that no other workers of different citizenship were retained, thereby negating her claim of discrimination. Complaint at ¶14(e).

Boyd thereby fails to allege one of two essential elements of a prima facie case for discriminatory discharge. Adapted from the framework the Supreme Court established in McDonnell Douglas Corp. v. Greene, 411 U.S. 492 (1973), and elaborated in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981), a prima facie case of discriminatory discharge on the basis of citizenship is established where an employee demonstrates that: (1) she is a member of a protected class; (2) she was fired under circumstances giving rise to an inference of unlawful discrimination on the basis of citizenship. Where the complainant establishes a prima facie case, the burden shifts to the employer to assert a legitimate, non-discriminatory rea- son for its employment decision. St. Mary’s Honor Cntr. v. Hicks, 509 U.S. 502, 507 (1993).

Where, however, a complainant is unable to present a prima facie case of discrimination, “the inference never arises and the employer has no burden of production.” Winkler v. Timlin, , at 9 (citing Lee v. Airtouch, , at 11 (citing Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st. Cir.

1991), cert. denied, 504 U.S. 985 (1992 . Boyd can satisfy the first, but not the second, of the test’s two prongs. As a United States citizen, she is a member of the class pro- tected by 8 U.S.C. §1324(b). As defined by §1324b(a)(1)(3), the class 1140 of “protected individuals” entitled to benefit from the prohibitions of §1324b(a)(1)(B) includes U.S. citizens.

Boyd cannot, however, satisfy the second prong. Here, in her own submission, she denies discrimi- nation. Nowhere in her complaint does Boyd allege that anyone else, citizen or alien, was treated differently from her. Characterizing events in a light most favorable to her, Boyd chose not to comply with Sherling’s demand that she complete IRS Form W–4, and instead submitted an improvised written statement that she was no longer subject to the Internal Revenue Code.

Boyd’s tax and social security challenges simply do not invite an inference that Sherling discriminated in firing her. Boyd’s theory that only aliens are subject to producing social security numbers and to complying with compulsory tax withholding finds no support in the Internal Revenue Code. Her convoluted inference, based on this doubtful the- ory, that U.S. citizens should somehow be exempt from taxation, does not support the inference that an employer who fails to favor U.S. citizens similarly situated discriminates against them. Failure to favor a group is not discrimination against it.

Boyd’s gripe is not with immigration law. Nothing in IRCA touches on an employee’s federal tax withholding obligations. And the call for a social security number in IRS Form W–4 is made by the government. It follows that under any conceivably reasonable reading of her Complaint, Boyd cannot establish a prima facie case of discrimina- tory discharge on the basis of citizenship.

Her Complaint is so insub- stantial that its deficiencies cannot be cured by amendment. Accordingly, there can be no genuine issue of material fact such as to warrant a confrontational evidentiary hearing. Therefore there is no call on Sherling to articulate a legitimate, non-discriminatory reason for firing Boyd. It is certain, however, that Boyd’s insistence that she be exempted from Sherling’s lawful and non-discriminatory regimen of tax withholding compliance would constitute such a reason.

Maximizing opportunities to amend discrimination complaints is generally favored. Because, however, Boyd relies exclusively on Sherling’s lawful request that she complete IRS Form W–4 as the gravamen of her discrimination claim, the consequential lack of any discernible meritorious §1324b claim forecasts that amendment would be futile. Boyd’s claim is therefore dismissed for failure to state a claim cognizable under IRCA. 1141 c. Complainant Fails To State a Claim of Document Abuse Section 1324b(a)(6) makes it unlawful for employers to demand particular documents from among the Form I–9 catalogue of docu- ments specified for satisfying the employment eligibility verification obligations.

Winkler v. Timlin, , at 10; Westendorf, , at 10; Lewis v. McDonald’s Corp., 3 OCAHO 383, at 5 (1991); United States v. Marcel Watch Corp., 1 OCAHO 143, at 1003 (1990), amended, 1 OCAHO 169, at 1158 (1990).There can be no claim of document abuse where the documents tendered are not doc- uments required for the purpose of ascertaining work eligibility under 8 U.S.C. §1324a(b). Winkler v. Timlin, , at 11. Nowhere does Boyd allege that Sherling requested a social security number to establish her employment eligibility. Instead, Boyd admits that she was already hired and had been working for some time be- fore she was requested to provide a social security number—not a card—as part of the process of completing IRS Form W–4, the tax withholding form already discussed at immoderate length.

IRS Form W–4 has nothing to do with the immigration-related employment practices reviewed by OCAHO administrative law judges. On its face, Boyd’s complaint demonstrates an effort to manipulate the §1324b prohibition against document abuse by cloaking a challenge to Internal Revenue Code and Social Security Act compliance in an un- related cause of action against her employer. Even had Sherling re- quested Boyd’s number to ascertain her employment eligibility “there is no suggestion in IRCA’s text or legislative history that an employer may not require a social security number as a precondition of em- ployment.” Westendorf, , at 10. “OCAHO case law cor- rectly holds that nothing in the logic, text or legislative history of the Immigration Reform and Control Act [IRCA] limits an employer’s ability to require a Social Security number as a precondition of em- ployment.” Winkler v. Timlin, , at 11 (citing Toussaint, , at 17 (citing Lewis v. McDonald’s, 2 OCAHO 383, at 4 .

Here, Boyd’s social security number was neither requested to ver- ify her employment eligibity nor requested in a discriminatory way. Furthermore, Boyd had no discernible legal right to press upon Sherling her dubious documents. Even assuming the facts in a light most favorable to Boyd, nothing even vaguely related to the statuto- rily prescibed document abuse took place here because the docu- ments she presented were not those “required under” 8 U.S.C. §1324a(b). Because Boyd’s documents are in derogation of the list 1142 stipulated on Form I–9 which the Attorney General has prescribed for §1324a(b) compliance, Boyd fails to state a cause of action for breach by Sherling under §1324b(a)(6).

See Horne v. Town of Hampstead, , at 8–9. Boyd’s claim of document abuse is therefore dismissed for failure to state a claim upon which relief can be granted. C. Approval of Voluntary Settlement Denied Title 28 C.F.R. §68.14(a) provides that parties to a complaint who have entered into a proposed settlement agreement shall submit to the presiding ALJ the agreement containing consent findings and a pro- posed decision and order. 28 C.F.R. §68.14(a)(1).

Alternatively, the par- ties may notify the ALJ that they have reached a settlement and agreed to a dismissal, subject to the approval of the ALJ. 28 C.F.R. §68.14(a)(2). On December 9, 1996, by letter dated November 22, 1996, Respondent reported that the parties had agreed to settle the case among themselves, pending the execution of a release, and the ap- proval and entry of an Order of Dismissal with Prejudice by the Court. On January 3, 1997, by letter dated December 18, 1996, Respondent transmitted to the Court drafts of a proposed Order of Dismissal, and a copy of the Release reflecting the settlement agree- ment, as yet unsigned.

Under its terms, the draft Release reflects that Sherling offered to pay Boyd a sum of $2,110.20 in return for relin- quishment of this action and as settlement of all claims against him. Title 28 C.F.R. §68.1 provides that for situations not covered by 28 C.F.R. Part 68, the Rules of Civil Procedure for the United States District Courts are available as guidelines. Accordingly, it is neces- sary and appropriate to apply Fed. R. Civ. P. 41(a)(2). Voluntary dis- missals under Rule 41(a)(2) are within a forum’s sound discretion.

Where a complaint fails to state a claim cognizable in the forum where it is brought, the judge has the authority to deny approval of a related settlement sua sponte and to dismiss the claim. Hermann v. Meridian Mort. Corp., 901 F.Supp. 915, 924 (E.D. Penn.

1995). Given this forum’s jurisdictional inability to entertain Boyd’s §1324b claims, I am unable to approve any voluntary settlement. Recent OCAHO cases deal with the types of claims Boyd alleges. All were dismissed.

See Winkler v. Timlin, , at 14; Horne v. Hampstead, ; Lee v. Airtouch Communications, , at 13–14; Toussaint v. Tekwood, , at 21–23, 1996 WL 1143 670179, at 17–18. As early as 1991, related issues were addressed exten- sively in Lewis v. McDonald’s, 3 OCAHO 383, at 5, 1991 WL 5328895, at 3. In light of unanimous OCAHO precedent, compelling the conclu- sion that the obvious infirmities are fatal to the pending claims, it would exceed ALJ jurisdiction to place a judicial imprimatur on an award. Absent subject matter jurisdiction over a complaint which fails to state a cause of action on which this forum can grant relief, judicial power is unavailable to approve a settlement which implic- itly assumes the employer’s liability.

A §1324b claim as insubstantial and lacking in merit as the present one cannot obtain a judicial blessing, whether by concurring in a disposition or otherwise.

III.

Conclusion and Order The national origin claim, citizenship status claim, and document abuse claim are dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted under 8 U.S.C. §1324b. Approval of the agreed voluntary dismissal is denied. IV. Appeal This Decision and Order is the final administrative order in this pro- ceeding, and “shall be final unless appealed” within 60 days to a United States Court of Appeals in accordance with 8 U.S.C. §1324(i)(1).

V. Appendices For convenience, this Decision and Order appends IRS Form W–4, the subject of this dispute, and INS Form N–560, INS certificate of U.S. citizenship, a document suitable for verifying employment eligi- bility under 8 U.S.C. §1324a(b). SO ORDERED: Dated and entered this 25th day of February, 1997.

MARVIN H. MORSE

Administrative Law Judge 1144 1145 1146 1147