Opposition Brief — Griffin & Brand of McAllen, Inc. v. Reyes

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Supreme Court, US,

FILED

JUN 9 1986 |

No. 87-1609

IN THE . CLERK

a es a

Supreme Court of the Gnited States

OCTOBER TERM, 1987

GRIFFIN AND BRAND OF MCALLEN, INCc., et al.,

Petitioners,

V.

MARGARITO REYES, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

RESPONDENTS’ BRIEF IN

OPPOSITION TO CERTIORARI

Davip G. HALL

Counsel of Record

VIVIANA S. PATINO

TEXAS RURAL LEGAL AID, INC.

259 South Texas

Weslaco, Texas 78596

(512) 968-6574

Counsel for Respondents

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

memes BRE SPY PE

INDEX

Page

STATEMENT OF THE CABE cncccccccccccsccscccceccccsccssccceses 1

REASON FOR DENYING CERTIORARI ..........cccecesceeeees 4

A. Certiorari Should be Denied Because

Defendants Seek An Advisory Opinion From

I aloha niiet 4

B. Certiorari Should be Denied Because The

Court of Appeals Decision Does Not Conflict

With Decisions Of Other Courts of Appeals

Se iitic ince rabisnantentaandacnstnsbesscenen 5

1. The Fifth Circuit Applied The Proper

Standard In Issuing The Writ Of Man-

usin 5

2. Immigration Status Is Not Relevant To

Te NE Te I GOD vith icecenscnnactadessens 7

C. Petitioners Seek Review Of Determinations

Of No Precedential Value ........................... 9

PT a eapnliilcpanauananeoun 10

pA ENR RE Piapce pen aed bo close? PSO Y A ES ORE re YEA la

il

TABLE OF AUTHORITIES

CASES: Page

Anderson v. Redman, 474 F.Supp. 511 (D.Del.

AQTD) ..01:sssainsnieiscsiicenia donnie taaiies laa amadlaiameaeaniaas 7

Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d

1317 Gth Cir. IGGD) icidccccuiieeeeee 7

City of Las Vegas v. Foley, 747 F.2d 1294 (9th Cir.

DBE) ......s0000nteneicnsiisietdleiuaishdjasiiialeiainiaianaienianantel 5

Goldblum v. National Broadcasting Corporation, 584

F.2d OO6 (OG Cie. TPGUD sssssscicsaiidioscetnnans 6

Harper & Row Publishers, Inc. v. Decker, 423 F.2d

487 (7th Cir. 1970), affd. 400 U.S. 348

(EDT) ..0.s:<ccacnanncdeicsaanhanneninieenaeeieaaa aan 6

In re Reyes, 814 F.2d 168 (5th Cir. 1987) ........... 1,3

Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949

(Sth Cie. BFE). ccsnsaccaticorsasacnaubenanee eaten 5

Marshall v. Presidio Valley Farms, Inc., 512 F.

Supp. 1195 (W.D. Tex. 1981) .....csccccscsccecscecees 8

Montelongo v. Meese, 803 F.2d 1341 (5th Cir.

_ IID naxssanscdnsasepenstgeteaneanne pianannatmmasinn 8

Plyler v. Doe, 457 US. BOB (UGB) ccccscccceccerncsscssess 8

Schlagenhauf v. Holder, 379 U.S. 104 (1964) ......... 5

Siz Mexican Workers v. Arizona Citrus Growers,

641 F.Supp 259 (D. Ariz. 1986) .................00.. 8

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) ...... 9

United States Board of Parole v. Merhige, 487 F.2d

25 (4th Cir. 1973), cert. denied, 417 U.S. 918

(RTE) .xin<<<asesseanncsaisnppeedenesiaheslaiaeannaaanaaaneaas 6

Usery v. Ritter, 547 F.2d 528 (10th Cir. 1977) .... 6

Winters v. Travia, 495 F.2d 839 (2d Cir. 1974) ... 6

ili

Table of Authorities Continued

STATUTES:

29 U.S.C. §§1801, et Seq. ....ccccceereereereeeees seiishaiascsiiaa

29 U.S.C. $1802 (8) (A) .......sscscceeeessceesssereessnereneeees

29 U.S.C. $1802 (10) (A) ...........eseeeeeerreeeserscseceserees

QQ U.S.C. §1816 ............ccecceeeeeececesssecceessnsereeeserenenees

29 U.S.C. §§201, et Seq. .......cccceceseeererecessssssscreseees

29 U.S.C. §203 (€) (1) ........ccccsseeeseeerccessssesscseeereees

AZ U.S.C. §§2996, et S€q. ....cccccceceeeeeeessseseseeeeeeeeeees

TEXT:

Wright and Miller, Federal Practice and Procedure:

Civil §2006 (1970)

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IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-1609

GRIFFIN AND BRAND OF MCALLEN, INC., et al.,

Petitioners,

Vv.

MARGARITO REYES, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

TO CERTIORARI Y

Respondents respectfully request that this Court

deny the petition for writ of certiorari seeking review

of the decision of the United States Court of Appeals

for the Fifth Circuit entered on March 30, 1987. That

opinion is reported at 814 F.2d 168 (5th Cir. 1987);

rehearing was denied on June 16, 1987. The opinion

of the district court is unreported. (Pet. App. at 323-

325).

STATEMENT OF THE CASE

This matter involves the issuance of a writ of man-

damus by the Fifth Circuit Court of Appeals to the

|

2

district court judge in Margarito Reyes, et al. v. Grif-

fin and Brand of McAllen, Inc., et al., No. B-85-412

(S.D. Tex. Brownsville Div.) (Hinojosa, J.). In that

case, twenty-one farm laborers seek to redress alleged

violations of the Migrant and Seasonal Agricultural

Worker Protection Act, 29 U.S.C. §§1801, et seq.

(“AWPA”"), and the Fair Labor Standards Act, 29

U.S.C. §§201, et seg. (“FLSA”), and breach of an

employment contract under Texas law. Plaintiffs are

represented by Texas Rural Legal Aid, Inc.

(“TRLA”), a Legal Services Corporation recipient

within the meaning of the Legal Services Corporation

Act, 42 U.S.C. §§2996, et seg. (“LSCA’’). During pre-

trial discovery Defendants, a Texas vegetable pro-

ducer that employed Plaintiffs and four of its farm

labor contractors, submitted discovery requests to

Plaintiffs. Interrogatory No. 6 of those requests

sought information regarding the immigration and cit-

izenship status of Defendants’ former employees.'

Plaintiffs objected to answering this request and

Defendants moved to compel. The sole ground for

Defendants’ motion to compel was that “the matters

inquired into are not privileged and are reasonably

calculated to lead to discovery of admissible evi-

dence.””*

Shan you homens 0 cliuan of cay ana ne

a citizen of the United States, please state your immigration

status.”

* At no point in the district court proceedings did Defendants

state how the requested information was relevant to the case.

3

On July 28, 1986, the district court entered a written

order requiring the Plaintiff farm workers, “‘to fully

respond to Defendant’s Interrogatory Number 6, con-

cerning each Plaintiff's immigration status.” Plaintiffs

requested that the court reconsider its ruling, but by

order dated October 3, 1986, the workers’ motion for

reconsideration was denied. On November 4, 1986,

Plaintiffs sought a writ of mandamus from the United

States Court of Appeals for the Fifth Circuit to direct

the district court to withdraw its order compelling dis-

covery. On March 30, 1987, the Fifth Circuit Court of

Appeals granted the writ of mandamus, “directing the

district court to withdraw that portion of its discovery

order requiring petitioners to answer questions con-

cerning citizenship and alienage, including alienage sta-

tus as documented or undocumented.” Jn Re Reyes,

814 F.2d 168, 171 (5th Cir. 1987); Pet. App. at 11.

Defendants’ petition for rehearing was denied on June

16, 1987. (Pet. App. at 17, 18).

Defendants then filed their petition for writ of

certiorari. Subsequently, Defendants and Plaintiffs

stipulated to an “Agreed Final Order’ which was

entered by the district court on March 30, 1988. A

copy of that order is attached hereto as Appendix A.

Pursuant to that order, Defendants agreed,

to pay to each Plaintiff the sum of ONE

THOUSAND AND NO/100 DOLLARS

($1000.00), in full and final settlement of all

claims by Plaintiffs against Defendants that

arise out of, or are based on, any of the

matters alleged in the complaint ...

“Agreed Final Order’’ at 1-2. The order recited that

seventeen of the twenty-one Plaintiffs had accepted

+

this settlement and dismissed their claims with prej-

udice. Jd. at 2. The order also stated,

5. The remaining Plaintiffs, Rafael Cardenas,

Jr., Juan Guel Palacios, Abraham Barbosa, Sr.

and Cristina Barbosa, remain as active liti-

gants pending a decision by the United States

Supreme Court in the action filed by

Defendants with such court. Upon a deter-

mination by the United States Supreme Court,

Defendants will seek dismissal of this cause

as to those Plaintiffs who have not contacted

Plaintiffs’ attorney and accepted or rejected

the settlement offer contained herein.

Id. at 2. One of these four remaining Plaintiffs re-

cently came forward to accept the settlement, the

others have not been in contact with their attorney

in over a year. In addition to the above “‘Agreed Final

Order,”’ Defendants have filed a motion to dismiss

the remaining Plaintiffs for failure to make them-

selves available for deposition, despite having been

ordered to do so by the district court.

REASONS FOR DENYING THE

PETITION FOR CERTIORARI

A. Certiorari Should be Denied Because Defendants

Seek An Advisory Opinion From This Court

As the above statement of facts makes clear,

Defendants no longer have an interest in the immi-

gration status of the Plaintiffs in this action, if they

ever had such an interest, because they have entered

into the “‘Agreed Final Order’”’ to settle the lawsuit.

Defendants continue to pursue their petition for

certiorari in an apparent attempt to obtain an advi-

sory opinion from this Court as to the correctness of

the district court’s order compelling discovery. This

Court does not sit to issue advisory opinions and it

should decline to do so in this case.

B. Certiorari Should Be Denied Because The Court Of

Appeals Decision Does Not Conflict With Decisions

Of Other Courts of Appeals Or This Court.

The extraordinary circumstances that counsel re-

view by writ of certiorari have not been satisfied in

this case. Defendants allege that the decision of the

Fifth Circuit “conflicts with the decisions of other

federal courts of appeals and this Court on the same

matter...” (Pet. at 2). However, the employers never

articulate how the decision below conflicts with the

decisions of the other circuit courts or of this Court.

1. The Fifth Circuit Applied The Proper Standard In Is-

suing The Writ Of Mandamus

Defendants contend that the Fifth Circuit erred in

holding that the discovery dispute in this case met the

legal standards for issuance of a writ of mandamus.

However, the courts of appeals have frequently used

mandamus to vacate orders compelling discovery

where, as here, the discovery at issue is irrelevant and

involves privileged information or information of a sen-

sitive and personal nature. See, e.g., Schlagenhauf v.

Holder, 379 U.S. 104 (1964) (district court’s order com-

pelling a physical examination amounted to a usur-

pation of power); City of Las Vegas v. Foley, 747 F.2d

1294 (9th Cir. 1984) (writ granted to protect city of-

ficials from disclosing mental process in enacting or-

dinance); Iowa Beef Processors, Inc. v. Bagley, 601 F.2d

949, 953-954 (8th Cir. 1979), cert. denied, 441 U.S.

907 (1979) (mandamus granted to protect general in-

terests in trade secrets not necessarily rising to the

ee

level of a privilege; writ vacated on other grounds at

rehearing); Goldblum v. National Broadcasting Cor-

poration, 584 F.2d 904 (9th Cir. 1978) (mandamus ap-

propriate to avoid production of privileged material);

Usery v. Ritter, 547 F.2d 528 (10th Cir. 1977) (writ

issued to vacate order compelling disclosure of identity

of employee/informer in FLSA case, due to danger of

possible retaliation); Winters v. Travia, 495 F.2d 839

(2nd Cir. 1974) (writ issued to protect Christian Sci-

entist from physical examination); United States Board

of Parole v. Merhige, 487 F.2d 25 (4th Cir. 1973), cert.

denied, 417 U.S. 918 (1974) (writ barred intrusion into

records of the Board of Parole); Harper & Row Pub-

lishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970),

affd., 400 U.S. 348 (1971) (writ issued to vacate dis-

covery order which would have infringed on attorney-

client privilege); see generally, Wright and Miller,

Fed.Prac. & Pro.: Civil §2006 (1970).

The Fifth Circuit’s decision to issue a writ of man-

damus to protect the Plaintiffs from discovery into

their immigration status was well within the stand-

ards for the exercise of mandamus jurisdiction dis-

cussed in the above cases. Immigration status is a

highly sensitive and personal matter; discovery into

it could well intimidate farm workers from asserting

their rights under the Fair Labor Standards Act

(FLSA) and the Migrant and Seasonal Agricultural

Worker Protection Act (AWPA), to the detriment not

only of those workers, but the public at large which

has an interest in ensuring that those statutes are

enforced. Moreover, as set forth below, immigration

status is wholly irrelevant to the issues in this case.

’ Farm workers who attempt to assert their rights are already

2. Immigration Status Is Not Relevant To The Issues In

This Case

Defendants argue that Plaintiffs’ immigration sta-

tus is relevant to two general issues: (1) Plaintiffs’

status as migrant or seasonal farm workers for pur-

poses of AWPA, and (2) their right to the protections

of AWPA and FLSA if they are undocumented al-

iens.*

As for the first issue, Plaintiffs’ status as migrant

or seasonal agricultural workers turns on whether

they were “required to be absent overnight from

[their] permanent place of residence.” 29 U.S.C. §1802

(8MA).° Plaintiffs have never objected to discovery

concerning this issue, such as where they claim to

subject to a “general background of fear and intimidation caused

by the widespread practice of retaliation against those who com-

plain about violations.” Beliz v. W.H.McLeod & Sons Packing

Co., 765 F.2d 1317, 1332 (5th Cir. 1985). Inquiry into immigra-

tion status would only compound this fear and intimidation.

‘ Defendants concede that the Legal Services Corporation Act,

42 U.S.C. § 2996e(bX1XB), deprives the district court of juris-

diction to consider the propriety of Plaintiffs’ representation by

a Legal Services Corporation grantee. See, e.g., Anderson v.

Redman, 474 F.Supp. 511, 520 (D.Del. 1979).

5 AWPA defines a ‘“‘migrant agricultural worker’ as ‘an in-

dividual who is employed in agricultural employment of a sea-

sonal or other temporary nature, and who is required to be

absent overnight from his permanent place of residence.’”’ 29

U.S.C. §1802(8XA). A seasonal agricultural worker is an indi-

vidual who is not required to be absent overnight from his per-

manent place of residence. 29 U.S.C. §1802(10XA). The AWPA

provides somewhat different protections to migrant workers as

opposed to seasonal workers.

permanently reside, their intent to remain there, or

where they were living at the time they performed

work for Defendants. But neither immigration status

nor citizenship are relevant to the question of resi-

dence. Plyler v. Doe, 457 U.S. 202, 227 n.22 (1982).

As for the second issue, the Fifth Circuit correctly

found that “‘it is well established that the protection

of the [FLSA] are applicable to citizens and aliens

alike and whether the alien is documented or undo-

cumented is irrelevant ... The same thing is true

with respect to claiming the benefits of the AWPA.”’

In Re Reyes, 814 F.2d at 170. See, e.g., Marshall v.

Presidio Valley Farms, Inc., 512 F.Supp. 1195 (W.D.

Tex. 1981) (FLSA minimum wage award to undocu-

mented farm workers); Montelongo v. Meese, 803 F.2d

1341, 1352 n.17 (5th Cir. 1986) (damage award to

farm workers regardless of immigration status under

predecessor statute to AWPA); Six Mexican Workers

v. Arizona Citrus Growers, 641 F. Supp. 259, 269 (D.

Ariz. 1986) (same).

That undocumented workers are entitled to the pro-

tections of FLSA and AWPA is apparent from the

language of those statutes. FLSA provides protection

to “employees”. An employee is defined as “any in-

dividual employed by an employer’’ subject to certain

enumerated exceptions. 29 U.S.C. §203(e1) (emphasis

added). Since undocumented aliens are not among the

listed exceptions, they plainly come within the broad

statutory definition of ‘‘employee.” Similarly, AWPA

extends its coverage to ‘‘any individual who engages

in agricultural employment of a seasonal or other tem-

porary nature ...’’ without reference to the individ-

ual’s immigration status. 29 U.S.C. §§1802(8\ A) and

1802(10XA) (emphasis added).* The language in there

two labor protective statutes is, thus, indiatinguish

able from the language of the National Labor Rela

tions Act which this Court has found to cover

undocumented aliens. Sure-T'an, Inc. v. N.L.RB., 46

U.S. 883, 891-92 (1984). Coverage of undocumented

aliens also advances the remedial purposes of FLSA

and AWPA in the same way such coverage advances

the purposes of the NLRA. /d. at 492. Nowhere in

Defendants’ petition for certiorari do Defendants cite

authority for the proposition that undocumented

workers are not covered by AWPA and FLSA, let

alone any conflict in the circuits on this issue.

Because the information sought = through

Defendants’ request would not lead to the discovery

of admissible evidence, the court of appeals properly

barred inquiry into Plaintiffs’ immigration or citizen

ship status. The decision of the court of appeals that.

Plaintiffs’ immigration or citizenship status was_ not.

relevant to any issues in litigation in no way conflicts

with decisions by other courts of appeals or decisions

by this Court.

C. Petitioners Seek Review Of Determinations Of No

Precedential Value

The issues raised by Defendants’ petition for

certiorari are of little importance to anyone other

*AWPA does prohibit farm laber cinitractors from cect

hiring undocumented aliens. 29 U.S.C. 31416. A tat on turing

undocumented aliens and a recuirermert. that they te affordert

the protections of the Act are not inconsistent. Hoth provisions

ensure that domestic farm workers are tot athversery atferter

by competition from undvcume4rtel anes worn Wer Wk,

standard comditioniz.

10

than the litigants in this case. Defendants do not

challenge the legal standards relied upon by the Fifth

Circuit in issuing mandamus, nor do they ask this

Court to define the appropriate legal standards for

mandamus. All defendants challenge is the application

of established standards to the particular facts of this

case. A decision by this Court that the Fifth Circuit

correctly or incorrectly applied the standards for

granting mandamus in this case is a highly fact-bound

question which would provide little or no guidance to

other litigants or to the courts of appeals on the

proper exercise of mandamus jurisdiction. Because it

would serve no useful purpose for this Court to grant

certiorari, it should decline to do so.

CONCLUSION

For the foregoing reasons the petition for writ of

certiorari to review the decision of the United States

Court of Appeals for the Fifth Circuit should be de-

nied.

Respectfully Submitted,

Davip G. HALL

Counsel of Record

VIVIANA 8S. PATINO

TEXAS RURAL LEGAL AID, INC.

Farm Workers Division

259 South Texas Blvd.

Weslaco, Texas 78596

Counsel for Respondents

APPENDIX

la

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

McALLEN DIVISION

MARGARITO REYES, et. al.

Plaintiffs,

Civil Action

No. M-B-85-412

vs.

GRIFFIN & BRAND OF MCALLEN, INC.

DANIEL TORRES, ALFREDO CANTU

BENITO BAZAN and GUADALUPE SALDIVAR

Defendants.

le a

AGREED FINAL ORDER

WHEREAS Plaintiffs commenced this action against

Defendants alleging violations of the Fair Labor Standards

Act, 29 U.S.C. §§201, et seq. and the Migrant and Seasonal

Agricultural Worker Protection Act, 29 U.S.C. §§1801, et

seq. and breach of contract;

WHEREAS Defendants filed an answer denying any

violations of said acts or contract;

WHEREAS Plaintiffs and Defendants wish to settle the

action without litigation or trial and lay to rest all claims

and controversies asserted therein, and all other claims —

that could be based on or arise out of any of the matters

alleged in the complaint, between and among the parties;

IT IS THEREFORE STIPULATED, CONSENTED TO

AND AGREED, by and among the undersigned as follows:

1. Defendants agree, without admitting the validity of

Plaintiffs’ allegations and in fact, continuing to deny such

allegations, to pay to each Plaintiff the sum of ONE

2a

THOUSAND AND NO/100 DOLLARS ($1,000.00), in full

and final settlement of all claims by Plaintiffs against

Defendants that arise out of, or are based on, any of the

matters alleged in the complaint and to pay Plaintiffs’

litigation expenses of $10,453.34 to Texas Rural Legal Aid,

Inc.

2. The following Plaintiffs have accepted Defendants’

offer: Margarito Reyes, Enrique Alanis, Jesus Alanis Gon-

zales, Rafael Cardenas, Sr., Santos Carrizales, Bernardo

Cervantes, Esteban Hernandez, Juan Hernandez, Andres

Olivares, Abraham Rivera, Jose Solis, Heberto Valdez, Al-

fonso Vargas, Pedro Vargas, Juan Lopez, Juan Jose Nu-

nez, Enrique Diaz and Frumencio Torres Trigo.

3. The above named Plaintiffs agree to individually ex-

ecute and deliver to Defendants full and final releases upon

payment to each Plaintiff of the above amount.

4. As to the above named Plaintiffs, this action is dis-

missed with prejudice.

5. The remaining Plaintiffs, Rafael Cardenas, Jr., Juan

Guel Palacios, Abraham Barbosa, Sr.'and Cristina Barbosa,

remain as active litigants pending a decision by the United

States Supreme Court in the action filed by Defendants

with such court. Upon a determination by the United States

Supreme Court, Defendants will seek dismissal of this cause

as to those Plaintiffs who have not contacted Plaintiffs’

attorney and accepted or rejected the settlement offer con-

tained herein.

6. Except as indicated in paragraph 1 herein, the parties

shall bear their respective costs of suit.

7. This agreement shall inure to the benefit of and shall

be binding upon the parties and their respective successors

and assigns. This agreement sets forth the entire terms

of the settlement between the parties hereto with respect

to the subject matter hereof and its supersedes any and

all agreements and understandings, if any, prior hereto.

3a

Approved this 30th day of March, 1988 at McAllen,

Texas.

/s/

United States District Judge

Agreed as to Form and Substance:

/s/ Vrvtana S. Patino

Viviana S. PATINO TRUE COPY I CERTIFY

Attorney In Charge For Plaintiffs ATTEST;

Admission ID No. 1496 JESSE E. CLARK, Clerk

Texas Rurat Lecat Ap, INc.

1220 North Stanton Street By

El Paso, Texas 79902 Deputy Clerk

(915) 544-4421