July 6, 2023

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The world’s largest retailer has requested that a federal judge issue an injunction. In it, the retailer wants the Department of Justice’s Office of the Chief Administrative Hearing Officer (OCAHO) to stop proceedings regarding alleged Form I-9 violations. They believe the judge overseeing the case and others with the OCAHO have unconstitutional shielding from the executive overview.

In an underlying case, the retailer faced a lawsuit from an investigation conducted by Immigrations and Customs Enforcement (ICE). The agency intended to establish whether the company properly verified the new hire’s identity and work authorization. As such, ICE reviewed the company’s Form I-9 and documentation retainment process. In its investigation, ICE claimed the employer had multiple paperwork violations related to completing and storing I-9 forms.

According to the complaint, the retailer sought a hearing with an administrative judge to contest these charges. ICE followed this by filing 20 amended complaints. The agency sought $24 million in penalties against the facilities that completed and stored the flawed documents.

An OCAHO judge oversaw these cases. However, the retailer complained that this exercised broad supervisory discretion. They compared it to a federal district judge in proceedings that resembled a district court. Despite this, the retailer argued that the Merit Systems Protection Board only allows the Attorney General to remove the judge. Furthermore, the Attorney General may do so only by finding a good cause or by the president. The latter requires finding inefficiency, neglect of duty, or malfeasance in office.

The retailer complained that this violated the Supreme Court’s precedent regarding interpretations of Article II of the Constitution. The Article gives the president “entire” power to enforce federal law, including the authority to remove inferior officers. As such, it typically permits the president to wield virtually unlimited removal power. The exception to this is that Congress can provide limited restrictions for an officer holding “limited duties and no policy-making or administrative authority.”

The retailer alleged that OCAHO judges receive two levels of protection from removal, holding significant duties and authority. As a result, the retailer claims that they do not fall within this exception and violate this precedent. The retailer argued that issuing preliminary and permanent injunctions against the defendants would remedy the situation. The plaintiff also requested the coverage of litigation costs and attorney’s fees.

As this case illustrates, Form I-9 violations can hold significant penalties. The best way to avoid them is to incorporate an advanced electronic I-9 management tool into the onboarding process. This tool can guide users through the process. It also ensures the safe electronic storage of forms and documentation.

Ensure compliance today by switching to an electronic I-9 management tool with I-9Compliance.

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