Temitope Ogunrinu v. OCAHO ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 21-1151 September Term, 2022
FILED ON: MARCH 24, 2023
TEMITOPE OGUNRINU,
PETITIONER
v.
OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER, EXECUTIVE OFFICE OF IMMIGRATION
REVIEW, U.S. DEPARTMENT OF JUSTICE, ET AL.,
RESPONDENTS
On Petition for Review of a Final Order
of the Department of Justice
Before: MILLETT, PILLARD, and RAO, Circuit Judges.
JUDGMENT
This case was considered on the record from the Office of the Chief Administrative
Hearing Officer and on the briefs of the parties. The Court has afforded the issues full
consideration and has determined that they do not warrant a published opinion. See FED. R. APP.
P. 36; D.C. CIR. R. 36(d). It is
ORDERED and ADJUDGED that the petition for review of the decision of the Office of
the Chief Administrative Hearing Officer be DENIED.
I
The anti-discrimination provisions of the Immigration Reform and Control Act of 1986, 8
U.S.C. § 1324b, forbid employers from discriminating against American citizens on the basis of
citizenship status when making hiring decisions. See id. § 1324b(a)(1)(B). Employers are also
forbidden from requesting unnecessary proof of immigration status, which is known as document
abuse, and from retaliating against employees asserting their right to be free from discrimination.
See id. § 1324b(a)(5)–(6).
Petitioner Temitope Ogunrinu is a dual citizen of the United States and Nigeria and a
practicing attorney who appears pro se. In 2010, she contacted Law Resources—a legal staffing
1
agency—for employment, and she began receiving communications from them about available
projects through an email list. Law Resources relies on attorneys communicating their
availability and interest in advertised projects before it staffs them. On September 20, 2018,
Ogunrinu emailed Law Resources asking to be staffed on a document review project. That same
day, the law firm Arnold & Porter requested contract attorneys from Law Resources to work on a
document review project. Arnold & Porter required that the attorneys be sole United States
citizens, due to a mistaken belief that dual citizens could not handle documents related to the
International Traffic in Arms Regulations (“ITAR”).
After informing Ogunrinu of the ITAR project, Law Resources included her on a list of
candidates it sent to Arnold & Porter. Arnold & Porter asked Law Resources to confirm that all
candidates had exclusively United States citizenship, and Law Resources asked Ogunrinu whether
she was solely a United States citizen. LRA–98, 102. When Ogunrinu asked why Law
Resources needed that information, Law Resources responded that the question came from Arnold
& Porter. LRA 102. Ogunrinu refused to confirm her citizenship, and so Law Resources
removed her name from consideration for employment on that project. Ultimately, five attorneys
worked on the ITAR project; the highest-paid received $2,208.75. LRA–36; Amended Order on
Motions for Summary Decision (“Order”) at 6, J.A. 487.
During that same period, Ogunrinu worked on a pre-existing project that she had received
from another employment agency, and to which she had already committed before applying for
the ITAR project. There, she earned $2,989.20. J.A. 502. Ogunrinu could not have both
completed the ITAR project and maintained her existing employment with this other agency
because Arnold & Porter forbade its contract attorneys from working simultaneously for other
employers. While Ogunrinu kept receiving advertisements regarding job opportunities from Law
Resources, she never contacted the agency again.
In early November 2018, Ogunrinu filed a charge with the Immigration and Employee
Rights Section of the Department of Justice alleging unlawful citizenship discrimination,
document abuse, and retaliation. When a complainant files a charge with the Department of
Justice alleging a violation of Section 1324b, the statute authorizes two parallel remedies. First,
the government may seek on its own behalf an order from the Office of the Chief Administrative
Hearing Officer (“Hearing Office”) enjoining future unfair employment practices and imposing
civil penalties. See 8 U.S.C. § 1324b(d)(1); id. § 1324b(g)(2)(B)(iv). If the government chooses
not to litigate, charging parties may bring their own claims before the Hearing Office, where the
same set of remedies is available. Id. § 1324b(d)(2).
In mid-November, following Ogunrinu’s filing of a charge with the Immigration and
Employee Rights Section, an administrative staff member at Law Resources placed Ogunrinu on
an internal “do-not-use” list, without direction by or the knowledge of supervisors. Order at 6,
J.A. 487; see also Ogunrinu Opening Br. 42. In May 2019, Law Resources’ principals learned
for the first time that Ogunrinu had been incorrectly placed on the do-not-use list, and they
immediately removed her from it. Law Resources Stmnt. Undisputed Facts ¶¶ 64–69, LRA–39–
40. Ogunrinu first learned that she was placed on the list during discussions with the Immigration
and Employee Rights Section in the Spring of 2020. Tr. Ogunrinu Dep. 173, LRA–83.
2
Arnold & Porter never placed Ogunrinu on a do-not-use list or any equivalent. Order at 5, J.A.
486. Both Law Resources and Arnold & Porter settled with the federal government the Employee
Rights discrimination charge that Ogunrinu had filed, but that settlement preserved Ogunrinu’s
right to bring an individual complaint for redress. LRA–121–131.
In 2019, Ogunrinu filed an administrative complaint with the Hearing Office against Law
Resources and Arnold & Porter, alleging citizenship discrimination, retaliation, and document
abuse. Order on Discrimination Claims, Denying Arnold & Porter’s Request to Dismiss
Retaliation Claim, and Permitting Further Briefing on Document Abuse Claims (“October 2
Order”) at 1, J.A. 219. Neither Law Resources nor Arnold & Porter disputed that the record
showed they had engaged in unlawful discrimination, and the Chief Administrative Law Judge
found them liable on that claim. October 2 Order at 2, J.A. 220. After further discovery, a
different Administrative Law Judge within the Hearing Office received briefing on cross-motions
for summary decision (which is equivalent to summary judgment) on the remaining issues—
retaliation and document abuse. 28 C.F.R. § 68.38(a)–(c). The ALJ granted summary decision
to Arnold & Porter and Law Resources on both of those claims. Order at 8, 14–16, J.A. 489, 495–
497. In addition, the ALJ imposed civil penalties payable to the government of $2,000 against
both Law Resources and Arnold & Porter for engaging in citizenship discrimination and enjoined
future violations. Order at 25, J.A. 506. But the ALJ denied Ogunrinu costs, backpay, front pay,
and compensatory damages on her discrimination claim. Order at 19–23, J.A. 500–504.
Ogunrinu appeals all of these adverse decisions, except for the ALJ’s grant of summary
decision on the document abuse claim. Ogunrinu Opening Br. 3.
Because Section 1324b does not specify the standard of judicial review, see 8 U.S.C.
§ 1324b(i)(1), we apply the arbitrary-and-capricious standard of the Administrative Procedure Act.
See United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l
Union v. Pension Benefit Guarantee Corp., 707 F.3d 319, 323 (D.C. Cir. 2013).
II
Because Ogunrinu’s arguments are foreclosed by the record and settled precedent, we deny
the petition for review.
A
Ogunrinu certainly was correct that Law Resources and Arnold & Porter engaged in
unlawful discrimination based on her citizenship status, as the ALJ found. October 2 Order at 7,
J.A. 225. But the record does not get her past summary judgment on her retaliation claim.
The Hearing Office has adopted the employment discrimination provisions of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as the standard for claims under Section
1324b. See Chellouf v. Inter Am. Univ. of P.R., 12 OCAHO no. 1269, at *4–*5 (2016). Because
both parties accept that framework, we assume without deciding that it governs Ogunrinu’s claim.
3
To state a Title VII retaliation claim, a plaintiff must show that, in response to her efforts
to assert her right to be free from discrimination, her employer took a “materially adverse” action—
that is, an action that “well might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.” Coleman v. Duke, 867 F.3d 204, 215 (D.C. Cir. 2017) (quoting
Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)) (formatting modified). A plaintiff
may meet that standard using direct or indirect evidence. George v. Leavitt, 407 F.3d 405, 413
(D.C. Cir. 2005). Ogunrinu did neither.
Ogunrinu argued that Law Resources itself had provided direct evidence of retaliation
when it admitted in a brief that, immediately after learning of Ogunrinu’s Section 1324b charge,
“[a]n administrative staff assistant * * * took it upon herself to place [Ogunrinu] on Law
Resources’ internal do-not-use list,” which, it explained, “is an internal [E]xcel spreadsheet that
Law Resources uses to track candidates that should not be staffed on future projects.” Law
Resources Mot. Bifurcate 3, J.A. 91.
The decision to deny future work to an employee because she filed a civil rights complaint
would normally be a textbook case of retaliation. But the unusual facts of this case establish that
Ogunrinu’s placement on the “do-not-use” list had no adverse impact on her employment. More
specifically, the list had no effect on Ogunrinu’s search for a new job because it was never shared
with another potential employer, and Ogunrinu, who was unaware of the listing, chose on her own
never again to apply to work on projects offered by Law Resources. Cf. Carter v. George
Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (“Where, as here, the plaintiff claims that
the retaliation took the form of a failure to hire, the plaintiff must also show * * * that [she] applied
for an available job[.]”) (quotation omitted); Passer v. American Chem. Soc’y, 935 F.2d 322, 331
(D.C. Cir. 1991) (“[E]fforts by an employer to scuttle a former employee’s search for a new job
* * * can constitute illegal retaliation[.]”).
Nor did Law Resources wield her placement on the list as a threat that might intimidate a
would-be complainant since Ogunrinu was unaware of the listing until well after she had both filed
the complaint and independently abandoned any interest in a job with Law Resources. Cf.
Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 178 (1st Cir. 2015) (threatened job
loss is sufficient for retaliation claim). On this record, Ogunrinu has not shown how a reasonable
complainant’s decision to bring a charge would be affected by inclusion on a list (i) that had no
effect on her job search, nor her employment more broadly, and (ii) of which neither she nor
anyone in a decision-making role at her prospective employer was aware. On that basis, the ALJ
properly rejected Ogunrinu’s direct-evidence theory. 1
1
Apart from concluding that Law Resources had established “a very different meaning for Complainant’s
presence on the list,” see Order at 10, J.A. 491, the ALJ also quibbled with Ogunrinu’s citations to the
opposing party’s brief, rather than to the record, as evidence of an admission. The ALJ’s view of
admissions is certainly questionable. At least one circuit has held that “an ‘admission’ for purposes of
summary judgment ‘includes anything which is in practical fact an admission, including statements made
in a brief presented to the district court.’” Rawoof v. Texor Petroleum Co., 521 F.3d 750, 756 (7th Cir.
2008) (quoting Woods v. City of Chicago, 234 F.3d 979, 989 (7th Cir. 2000)). But we need not pass on
the correctness of that rule because the focus on the missing factual links in Ogunrinu’s argument fully
4
As for Arnold & Porter, Ogunrinu never argued that the law firm had anything to do with
operating the list, so Ogunrinu’s direct-evidence theory addressed Law Resources alone.
Ogunrinu Mot. Summ. Decision at 6, J.A. 323.
Absent direct evidence, Ogunrinu had to prove that (1) she engaged in conduct protected
under Section 1324b; (2) she suffered an adverse employment action; and (3) there was a causal
link between the protected conduct and the adverse action. Iyoha v. Architect of the Capitol, 927
F.3d 561, 574 (D.C. Cir. 2019). The burden would then shift to the respondents to articulate a
non-retaliatory reason for their actions. Hernandez v. Pritzker, 741 F.3d 129, 133 (D.C. Cir.
2013). Unlike her direct-evidence theory, which focused on her complaint to the Department of
Justice and her resulting placement on the do-not-use list, Ogunrinu’s indirect-evidence theory
focused instead on Arnold & Porter’s and Law Resources’ alleged retaliation against her for
refusing to disclose her dual citizenship when they failed to hire her for the ITAR project (in the
case of Law Resources) and by interfering with her ability to find work elsewhere (in the case of
both Arnold & Porter and Law Resources). See Ogunrinu Mot. Summ. Decision 12–14, J.A. 329–
331.
The ALJ correctly determined that Ogunrinu failed to substantiate her allegation that
Arnold & Porter and Law Resources had failed to hire her for other jobs or interfered with her
search for employment with other firms. Ogunrinu never expressed interest in any of the
subsequent jobs that Law Resources advertised to her, Order at 13–14, J.A. 494–495, and she never
applied for another job with Arnold & Porter. See Order at 15, J.A. 496. Nor did she identify
any interference with employment opportunities at other firms or staffing agencies. Order at 14–
15, J.A. 495–496.
That leaves only the allegation that Law Resources excluded Ogunrinu from the ITAR
project to retaliate against her refusal to disclose her citizenship. The ALJ correctly held that
Ogunrinu established a prima facie case of retaliation on that basis. Law Resources’ refusal to
hire her was materially adverse, and it came after her refusal to disclose her dual citizenship, which
is protected oppositional activity of which Law Resources was fully aware. Order at 13, 16, J.A.
494, 497. Further, while the ALJ made no definitive finding on the third prong, the temporal
proximity between Ogunrinu’s emails and her rejection from the ITAR project would allow a
reasonable factfinder to infer Law Resources’ retaliatory motive in not staffing her on the ITAR
job. See Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985) (temporal proximity can be
sufficient).
At that point, the burden shifted to Law Resources to provide a non-retaliatory reason for
its exclusion of Ogunrinu from the ITAR project. See Nurriddin v. Bolden, 818 F.3d 751, 758
(D.C. Cir. 2016). Law Resources discharged that burden at the summary judgment stage by
showing that, while its action was discriminatory, it was not retaliatory. That is because, given
supports the ALJ’s decision. Nor need we consider Ogunrinu’s argument, presented here for the first time,
that the ALJ should have analyzed her inclusion on the do-not-use list under the indirect evidence test. See
Ogunrinu Opening Br. 40. As we have explained, she failed to demonstrate on this record that her
inclusion on that list was an adverse employment action.
5
Arnold & Porter’s specific sole-citizen mandate, Law Resources would have excluded any dual
citizen from the project irrespective of their opposition to or acquiescence in the request for
citizenship information. Order at 18, J.A. 499. In other words, even if Ogunrinu had not
attempted to exercise her right to be free of discrimination based on citizenship, she still would
have been excluded from the ITAR project due to Arnold & Porter’s erroneous assumption that
she was legally ineligible to work on the project. Accordingly, Law Resources would have
removed her from the project whether or not she opposed the citizenship inquiry. Ogunrinu
neither contests that explanation nor provides any evidence that her protected activity instead was
the actual cause of her exclusion, making summary judgment in favor of Law Resources on the
retaliation claim proper. Order at 18, J.A. 499; see Allen v. Johnson, 795 F.3d 34, 46 (D.C. Cir.
2015) (summary judgment proper if employee fails to rebut the employer’s non-retaliatory
reasons).
Because Ogunrinu failed to carry her summary judgment burden to demonstrate retaliation
either by direct or indirect evidence, the ALJ’s grant of summary judgment to Law Resources and
to Arnold & Porter on that claim was appropriate.
B
The ALJ also reasonably refused to take judicial notice of two alleged admissions of
discrimination by Law Resources and Arnold & Porter and of their settlement agreement with the
government. See Ogunrinu Opening Br. 27–29. Having already found that both Law Resources
and Arnold & Porter had engaged in unlawful discrimination, there was no need to pile on more
evidence of discrimination. J.A. 225. And none of the evidence for which Ogunrinu seeks
judicial notice bears on the evidentiary gaps in the only legal issue in dispute before the Hearing
Office: her retaliation claim.
Similarly, Ogunrinu’s claim that Arnold & Porter and Law Resources are joint employers
is irrelevant to their liability since neither of them was shown to have engaged in unlawful
retaliation.
III
Ogunrinu separately challenges the ALJ’s decision not to award costs, front pay, back pay,
or damages on her discrimination claim. Those challenges, too, are foreclosed by the law and the
record.
First, on the subject of costs, Section 1324b(h) permits the Hearing Office to award “a
reasonable attorney’s fee, if the losing party’s argument is without reasonable foundation in law
and fact.” 8 U.S.C. § 1324b(h). That statute, though, says nothing about incidental litigation
costs like filing fees. Statutes authorizing costs generally do not impliedly authorize attorney’s
fees, and vice versa. Peter v. NantKwest, Inc., 140 S. Ct. 365, 373–374 (2019); see also Breda v.
Kindred Braintree Hosp., LLC, 11 OCAHO no. 1225, at *4 (Aug. 26, 2014) (“Absent any statutory
or regulatory authority for an award of costs, each party must be responsible for its own incidental
6
expenses.”). This rule forecloses the award of incidental costs here. 2
In any case, Ogunrinu’s argument that a reasonable attorney’s fee includes other incidental
expenses fails at the threshold because longstanding Hearing Office precedent prohibits awarding
attorney’s fees to pro se attorney litigants. See Ojeda-Ojeda v. Booth Farms, L.P., 9 OCAHO no.
1121, at *2 (Sept. 26, 2006) (citing Kay v. Ehrler, 499 U.S. 432 (1991)); see also Kooritzky v.
Herman, 178 F.3d 1315, 1319 (D.C. Cir. 1999). Ogunrinu does not challenge that precedent here.
To be sure, during the discovery phase in this case, an ALJ explained that Ogunrinu did
not need to hire an expert to assess her costs because she could “provide receipts” to substantiate
any later request for costs. Order of Oct. 15 at 18, J.A. 173. But that passing statement spoke
only to how costs could be proved if she ever became eligible for such relief, which she did not.
Second, on the denial of back pay, the statute requires the Hearing Office to reduce back
pay by any “[i]nterim earnings.” 8 U.S.C. § 1324b(g)(2)(C). Ogunrinu earned more during the
period of the ITAR project than the highest-paid employee staffed on that project, and she
repeatedly represented that she intended to work exclusively on the ITAR project had she been
chosen for it and so could not have simultaneously earned salaries for both projects. Order at 21,
J.A. 502; Tr. Ogunrinu Dep. 73–74, LRA–80. Because her actual earnings more than made up
financially for being excluded from the ITAR project, she was entitled to no additional back pay
award.
Ogunrinu argues that she is entitled to back pay at the rate for which Arnold & Porter or
Law Resources would have billed her time to their clients. But back pay awards compensate for
the value of a job to the employee, not what it was worth to the employer. Albemarle Paper Co.
v. Moody, 422 U.S. 405, 421 (1975). For that same reason, the ALJ acted reasonably in denying
Ogunrinu extra time to undertake discovery into Arnold & Porter’s billing rate to clients. See
Order on Sept. 2020 Mots. at 17–19, J.A. 172–174. That evidence is irrelevant to any lost
earnings.
Third, as for front pay, that form of relief only substitutes for reinstatement to a job.
Barbour v. Merrill, 48 F.3d 1270, 1279 (D.C. Cir. 1995). The ITAR project “lasted for eight days
only and did not lead to any subsequent document review project[,]” so reinstatement was not an
option. LRA–36. Ogunrinu never sought any other employment from Arnold & Porter, see J.A.
312, or from Law Resources, LRA–62; nor did she identify available jobs for which she requested
reinstatement but was refused. Instead, Ogunrinu grounded her front pay claim in “reduced
marketability resulting [from] damaged reputation.” Complainant’s Supp. Resps. Pursuant to
Ct.’s Sept. 10, 2020 Order on Law Resources 1st Req. for Prod. Docs. At 3, LRA–135. But she
provided none of the “essential data”—no summary judgment evidence—that would allow a
reasonable fact finder to conclude that she suffered any reputational harm whatsoever. Barbour,
48 F.3d at 1279 (quotation omitted).
Finally, Ogunrinu failed to show that she was entitled to compensatory damages. Even
2
For the same reason, we need not pass on whether the value of lost wages might count as a cost of
litigation. See Ogunrinu Reply Br. 24.
7
assuming the Hearing Office has the power to award compensatory damages, but see Breda, 11
OCAHO no. 1225 at *5, Ogunrinu offered no evidence of a qualifying individual injury. See
Ogunrinu Mot. Summ. Decision at 31, J.A. 348; Order at 19, J.A. 500. She focused only on what
she characterized as the “deliberate, reckless, depraved and intentional” misconduct by Law
Resources and Arnold & Porter. Ogunrinu Mot. Summ. Decision at 31, J.A. 348. Such evidence
would be relevant to a claim for punitive damages, which Ogunrinu repeatedly disclaimed seeking,
but it does not show an individualized compensable injury. Complainant’s Reply Opp. Arnold &
Porter’s Mot. Summ. Decision at 25, J.A. 396; Complainant’s Reply Opp. Law Resources’ Mot.
Summ. Decision at 47, J.A. 453.
IV
Ogunrinu’s equal protection challenge to the limited remedies available to successful
complainants likewise fails. Ogunrinu argues that citizenship-based discrimination should not be
punished less severely than other kinds of discrimination. Whatever the merits of that argument
as a matter of policy for Congress, there is no constitutional problem with Congress selecting
different remedies for different kinds of injuries. See, e.g., Kennedy v. Whitehurst, 690 F.2d 951,
965–966 (D.C. Cir. 1982) (comparing the availability of attorney’s fees under the Age
Discrimination in Employment Act and under Title VII).
V
Finally, Ogunrinu’s procedural challenges do not succeed.
First, the ALJ’s failure to issue its decision within 60 days of the completion of briefing as
required by regulation, 28 C.F.R. § 68.52(b), does not render the ruling void. A statutory
“provision that the Government ‘shall’ act within a specified time” generally does not deprive the
agency of authority to act later unless Congress specifically says so. Barnhart v. Peabody Coal
Co., 537 U.S. 149, 158 (2003). Section 1324b says nothing like that.
Second, Ogunrinu complains that the ALJ’s order that Law Resources and Arnold & Porter
“cease and desist [their] unfair immigration-related employment practices,” Order at 24, J.A. 505,
is “unenforceable” because it is too generic, Ogunrinu Opening Br. 32. But it matches the
wording she proposed. See J.A. 349–50; LRA–82; see also South Coast Air Quality Mgmt. Dist.
v. EPA, 472 F.3d 882, 891 (D.C. Cir. 2006) (“It is settled law that a party that presents a winning
opinion before the agency cannot reverse its position before this court.”). Further, since the
Office’s injunctive power is limited to “immigration-related” practices, it could not have granted
Ogunrinu’s request to enjoin Law Resources’ or Arnold & Porter’s alleged violations of the
District of Columbia’s ethical rules on the practice of law. See 8 U.S.C. § 1324b(g)(2)(A).
Third, Ogunrinu’s complaint about alleged procedural faults in Law Resources’ and
Arnold & Porter’s written deposition questions fails to grapple with the ALJ’s reasoned ruling that
the questions were “necessitated by [Ogunrinu’s] tardy service of discovery responses.” J.A. 227.
In any event, Ogunrinu did not object to that ruling at the time, and so cannot challenge that ruling
for the first time here. See J.A. 227–228; Holcomb, 433 F.3d at 903.
8
*****
For the foregoing reasons, the petition for review is denied.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is
directed to withhold issuance of the mandate herein until seven days after resolution of any
timely petition for rehearing or rehearing en banc. See FED. R. APP. P. 41(b); D.C. CIR. R.
41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
9