Appendix — NIBCO, Inc. v. Rivera

la

MARTHA RIVERA; MAO HER; ALICIA ALVAREZ; EVA

ARIOLA; PEUANG BOUNNHONG; ROSA CEJA;

CHHOM CHAN; BEE LEE; PAULA MARTINEZ; MARIA

DOMITILIA MEDINA; MAI MEEMOUA; MARGARITA

MENDOZA; BAO NHIA MOUA; ISIDRA MURILLO;

MARIA NAVARRO; VATH RATTANATAY; OFELIA

RIVERA; SARA RIVERA; MARIA RODRIGUEZ; MARIA

RUIZ; MARIA VALDIVIA; SY VANG; YOUA XIONG;

SEE YANG; XHUE YANG, Plaintiffs-Appellees,

v.

NIBCO, INC., an Indiana corporation, Defendant-Appellant.

No. 02-16532

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

Appeal from the United States District Court for the

Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted

July 16, 2003 — San Francisco, California

Filed April 13, 2004

Before: Stephen Reinhardt, Eugene E. Siler, Jr.,* and

Michael Daly Hawkins, Circuit Judges

*Honorable Eugene E. Siler, Jr., Senior Judge for the United

States Circuit Court of Appeals for the Sixth Circuit, sitting

by designation.

2a

COUNSEL: Sara Hedgpeth-Harris, Sagaser, Franson &

Jones, Fresno, California, for the appellant.

Christopher Ho, The Legal Aid Society--Employment Law

Center, San Francisco, California, for the appellees.

Rebecca Smith, The National Employment Law Project,

Olympia, Washington, for amici curiae The National

Employment Law Project, Mexican American Legal Defense

and Educational Fund, American Federation of State, County

and Municipal Employees, Asian American Legal Defense

and Education Fund, Asian Pacific American Legal Center,

Coalition for the Humane Immigrant Rights of Los Angeles,

Equal Rights Advocates, New York Immigration Coalition,

Immigrant Rights Network of Iowa-Nebraska, National

Council of Law Raza, National Interfaith Committee for

Worker Justice, Puerto Rican Legal Defense and Education

Fund, Pineros Y Campesinos Unidos del Noreste, and

Sweatshop Watch.

Brendan D. Cummins, Minneapolis, Minnesota, for amici

curiae The National Employment Lawyers Association,

California. Women’s Law Center, and The National

Partnership for Women and Families.

OPINION

REINHARDT, Circuit Judge:

Defendant NIBCO has brought this interlocutory appeal

to challenge the validity of a protective order, fashioned by a

federal magistrate and affirmed by the district court. The

order prohibits NIBCO from using the discovery process to

inquire into the plaintiffs’ immigration status and eligibility

for employment. Because NIBCO has failed to demonstrate

that the protective order was either clearly erroneous or

3a

contrary to law, we affirm the district court’s decision

denying reconsideration of the order.

I. Factual and Procedural Background

The plaintiffs in this dispute are twenty-three Latina and

Southeast Asian female immigrants once employed as

production workers at NIBCO’s factory in _ Fresno,

California.’ All of the plaintiffs are of limited English

proficiency, yet all allegedly performed their respective duties

successfully during their tenure with NIBCO. Although the

plaintiffs’ job descriptions did not require English

proficiency, sometime in 1997 or 1998, NIBCO required

them to take basic job skills examinations given only in

English. The plaintiffs performed poorly on the exams.

NIBCO allegedly responded with a range of adverse

employment consequences. Some plaintiffs were demoted or

transferred to undesirable job assignments; eventually, all

plaintiffs were terminated in the period between July 30, 1998

and September 24, 1998.

The plaintiffs requested and received right-to-sue letters

from the EEOC and California’s Department of Fair

Employment and Housing (“DFEH”). Subsequently, the

plaintiffs filed an action in federal court, alleging disparate

impact discrimination based on national origin in violation of

Title VII, 42 U.S.C. § 2000e et seq., and the California Fair

Employment and Housing Act (“FEHA”), Cal. Gov’t Code

§ 12940, et seq. The plaintiffs sought reinstatement (and front

pay for those not electing reinstatement), backpay,

compensatory and punitive damages, and attorneys fees, as

well as injunctive relief enjoining NIBCO from, inter alia,

continuing its English-language testing policy, and

' The suit was originally brought by twenty-five named

plaintiffs as representatives of a similarly situated class. Plaintiffs

voluntarily dismissed all class action portions of the complaint. On

September 18, 2002, plaintiffs Rosa Ceja and Xhue Yang

voluntarily dismissed their claims, leaving twenty-three remaining

plaintiffs.

4a

compelling it to expunge any record of wrongdoing from

personnel files.

This interlocutory appeal arises out of a discovery

dispute in the above action. During the deposition of plaintiff

Martha Rivera, NIBCO asked where she was married and

where she was born. Although Rivera had specified that she

was of “Mexican ancestry” in her answers to interrogatories,

Rivera’s counsel instructed her not to answer any further

questions pertaining to her immigration status. The plaintiffs

thereafter terminated the deposition. The plaintiffs then filed

for a protective order against further questions pertaining to

immigration status. Their request was predicated on the claim

that — because each plaintiff had already been verified for

employment at the time of hiring and because further

questions pertaining to immigration status were not relevant

to their claims — additional questioning would have a chilling

effect on their pursuit of their workplace rights.

The magistrate judge presiding over discovery issued a

protective order. The order granted the plaintiffs some

discovery protection for three types of questions NIBCO

sought to ask. With respect to questions relating to the

plaintiffs’ places of birth, the magistrate judge found that

“there appears to be no dispute that each plaintiff is a member

of a protected class, and [thus that] further questions

regarding where each plaintiff was born has no further

relevance to this action.” Rivera v. NIBCO, Inc., 204 F.R.D.

647, 649 (E.D. Cal. 2001). The magistrate judge did,

however, allow NIBCO discovery concerning the plaintiffs’

places of marriage, educational background, current and past

employment, damages, date of birth, and criminal

convictions, but limited disclosure of that information to the

parties and their attorneys. /d. at 649. With regard to each

plaintiffs immigration status, the magistrate judge barred all

* Both parties stipulated to the national origin designation of

each plaintiff as contained in NIBCO’s representations to the

EEOC.

Sa

discovery into the matter, but did not preclude NIBCO from

conducting its own independent investigation. She

acknowledged that the “after-acquired” evidence doctrine

could limit NIBCO’s liability in the event that it discovered

that some plaintiffs were not eligible for employment, but

ruled that NIBCO under the circumstances did not have a

right to use the discovery process to gain that information. /d.

at 649-51 (citing McKennon v. Nashville Banner Publishing

Co., 513 U.S. 352, 362-63, (1995)). Allowing NIBCO to

obtain such information through the discovery process, she

found, would unnecessarily chill legitimate claims of

undocumented workers under Title VII.

NIBCO filed a motion under FED. R. CIV. P. 72(a),

requesting that the district court reconsider the magistrate’s

ruling. The court denied the motion. Rivera v. NIBCO, Inc.,

2001 WL 1688880 (E.D. Cal. Dec. 21, 2001). It found that

the defendant’s various contentions misstated the magistrate’s

ruling, and held that it was neither clearly erroneous nor

contrary to law. /d.

NIBCO subsequently filed a motion to certify the

discovery ruling for interlocutory appeal. Before the district

judge ruled on the motion, however, the United States

Supreme Court issued its decision in Hoffman Plastic

Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) [hereinafter

Hoffman]. Hoffman held that the National Labor Relations

Board lacks the discretion to award backpay to undocumented

workers seeking relief for an employer’s unlawful

employment practices under the National Labor Relations

Act. 535 U.S. at 151-52. NIBCO immediately filed a second

motion to reconsider, claiming that after Hoffman, each

plaintiff's immigration status was discoverable because of its

direct relevance to potential remedies. In response, the

plaintiffs proposed a proceeding bifurcated into liability and

damages phases. Under the plaintiffs’ proposal, the case

would proceed to trial on liability first. If the plaintiffs were

able to prove NIBCO’s liability for the alleged disparate

impact violation, the court would then hold an in camera

6a

proceeding designed to preserve the plaintiffs’ anonymity,

protect their statutory rights, and avoid prejudicing the

defense. The proceeding would allow each plaintiff to testify

regarding her immigration status, provide documents

supporting her entitlement to backpay, and provide a formal

certification from the Social Security Administration attesting

that she was authorized to work throughout the backpay

period. The judge would make deductions from the aggregate

award backpay for any plaintiff who failed to prove

eligibility. Once the aggregate award was thus reduced to

encompass only eligible plaintiffs, plaintiffs’ counsel would

then have the responsibility of giving each eligible plaintiff

her share of the total.

The district court postponed its decision on whether to

bifurcate the trial, denied NIBCO’s request to reconsider, and

granted NIBCO’s motion to certify the post-Hoffman order

denying reconsideration of the interlocutory appeal pursuant

to 28 U.S.C. § 1292(b). We granted the petition for

interlocutory appeal.

II. Standard and Scope of Review

District courts review magistrate judges’ pretrial orders

under a “clearly erroneous or contrary to law” standard. FED.

R. CIV. P. 72(a). This court reviews “a district court’s denial

of a motion to reconsider a magistrate’s pretrial [protective

discovery] order under that same standard.” Osband v.

Woodford, 290 F.3d 1036, 1041 (9th Cir. 2002). We may not

overtum a protective order simply because we might have

weighed differently the various interests and equities; instead,

we must ascertain whether the order was contrary to law.’

* When a protective order is overbroad, we may consider the

principles militating in favor of and against discovery, and remand

with instructions to guide the district court in modifying the

protective order. See Foltz v. State Farm Mut. Auto. Ins. Co., 331

F.3d 1122, 1139-41 (9th Cir. 2003) (considering the relevant

principles and remanding with guiding instructions).

Ta

We have jurisdiction to consider orders certified for

interlocutory-appeal under 28 U.S.C. § 1292(b). Our scope of

review is broader than the specific issues the district court has

designated for appellate review. “The appellate court may

address any issue fairly included within the certified order

because ‘it is the order that is appealable, and not the

controlling question identified by the district court.’” Yamaha

Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996)

(quoting 9 J. MOORE & B. WARD, MOORE’S FEDERAL

PRACTICE 4 110.25[1], at 300 (2d ed.1995)). See also id.

(“*The court of appeals may review the entire order, either to

consider a question different than the one certified as

controlling or to decide the case despite the lack of any

identified controlling question.”*) (quoting 16 C. WRIGHT,

A. MILLER, E. COOPER, & E. GRESSMAN, FEDERAL

PRACTICE AND PROCEDURE

§ 3929, at 144-145 (1977)); Central Delta Water Agency v.

United States, 306 F.3d 938, 952 n.10 (9th Cir. 2002). In this

case, the order certified is the district court’s post-Hoffman

order denying reconsideration of the protective order granted

by the magistrate judge. We now turn to whether the district

court was required by law to overturn or modify the

protective order.

III. Discussion

The magistrate judge granted the protective order at issue

pursuant to FED. R. CIV. P. 26. Rule 26 states that, in

general, any matter relevant to a claim or defense is

discoverable. FED. R. CIV. P. 26(b). That principle is subject

to limitation. After a showing of good cause, the district court

may issue any protective order “which justice requires to

protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense,” including any order

prohibiting the requested discovery altogether, limiting the

scope of the discovery, or fixing the terms of disclosure. Fed.

R. Civ. P. 26(c). The burden is upon the party seeking the

order to “show good cause” by demonstrating harm or

prejudice that will result from the discovery. See Phillips ex

8a

rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206,

1210-11 (9th Cir. 2002). “If a court finds particularized harm

will result from disclosure of information to the public, then it

balances the public and private interests to decide whether a

protective order is necessary.” /d. at 1211. In this case, the

protective order was justified because the substantial and

particularized harm of the discovery — the chilling effect that

the disclosure of plaintiffs’ immigration status could have

upon their ability to effectuate their rights’ — outweighed

NIBCO’s interests in obtaining the information at this early

stage in the litigation. We therefore hold that the district

court’s decision not to disturb the order was neither clearly

erroneous nor contrary to law.

A. The Harm of Disclosure

The protective order at issue bars discovery into each

plaintiff's immigration status on the basis that allowing

NIBCO to use the discovery process to obtain such

information would chill the plaintiffs’ willingness and ability

to bring civil rights claims. Rivera, 204 F.R.D. at 651. By

revealing their immigration status, any plaintiffs found to be

undocumented might face criminal prosecution and

deportation. Although NIBCO has promised not to disclose

* NIBCO has conceded for the purposes of these proceedings

that Title VII applies to discrimination against undocumented aliens

on one of the protected grounds: race, sex, national origin, etc.

Rivera, 204 F.R.D. at 649. The parties’ stipulation is consistent

with what we have long assumed to be the law of this circuit. See

EEOC vy. Hacienda Hotel, 881 F.2d 1504, 1517 n.10 (9th Cir. 1989)

(assuming without deciding that undocumented workers are entitled

to the protections of Title VII), overruled on other grounds by

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and

Faragher vy. City of Boca Raton, 524 U.S. 775 (1998); see also

EEOC v. Tortilleria “La Mejor” , 758 F. Supp. 585, 590 (E.D. Cal.

1991) (holding that “the protections of Title VII were intended by

Congress to run to aliens, whether documented or not, who are

employed within the United States’’).

9a

the plaintiffs’ immigration status to any outside party, the

district court found that requiring the plaintiffs to answer such

questions in the discovery process would likely deter them,

and future plaintiffs, from bringing meritorious claims.

We agree with the district court. There are reportedly

over 5.3 million workers in the “unauthorized labor” force.

See Dean E. Murphy, A New Order: Imagining Life Without

Illegal Immigrants, N.Y. TIMES, Jan. 11, 2004, § 4, at 1.

Many of these workers are willing to work for substandard

wages in our economy’s most undesirable jobs. While

documented workers face the possibility of retaliatory

discharge for an assertion of their labor and civil rights,

undocumented workers confront the harsher reality that, in

addition to possible discharge, their employer will likely ©

report them to the INS and they will be subjected to

deportation proceedings or criminal prosecution. See Br. of

Amicus Curiae of National Employment Law Project, et al.,

4-12. The caselaw substantiates these fears. E.g., Sure-Tan,

Inc. v. NLRB, 467 U.S. 883, 886-87 (1984) (employer

reported five undocumented workers after they voted in favor

of union representation); Does I thru XXIII v. Advanced

Textile Corp., 214 F.3d 1058, 1062-63 (9th Cir. 2000) (court

allowed the plaintiffs to plead their claims anonymously due

to their fear of retaliatory deportation); Fuentes v. INS, 765

F.2d 886, 887 (9th Cir. 1985) (employer reported

undocumented workers he had employed for three years for

less than minimum wage when they filed suit to recover

wages owed), vacated by Fuentes v. INS, 844 F.2d 699 (9th

Cir. 1988); Singh v. Jutla & C.D. & R’s Oil, Inc., 214 F.

Supp. 2d 1056, 1057 (N.D. Cal. 2002) (employer recruited an

undocumented worker and then reported him to the INS after

he filed an FLSA claim for unpaid wages); Contreras v.

Corinthian Vigor Ins. Brokerage, Inc., 25 F. Supp. 2d 1053,

1055 (N.D. Cal. 1998) (employer reported an undocumented

worker after she filed a FLSA claim for unpaid wages).

As a result, most undocumented workers are reluctant to

report abusive or discriminatory employment practices. See

10a

United States v. Brignoni-Ponce, 422 U.S. 873, 879 (1975)

(“The aliens themselves are vulnerable to exploitation

because they cannot complain of substandard working

conditions without risking deportation.”); see also Michael J.

Wishnie, /mmigrants and the Right to Petition, 78 N.Y.U. L.

REV. 667, 676-79 (2003) (arguing that undocumented

workers are reluctant to report a variety of labor and

employment law violations). Granting employers the right to

inquire into workers’ immigration status in cases like this

would allow them to raise implicitly the threat of deportation

and criminal prosecution every time a worker, documented or

undocumented, reports illegal practices or files a Title VII

action. Indeed, were we to direct district courts to grant

discovery requests for information related to immigration

Status in every case involving national origin discrimination

under Title VII, countless acts of illegal and reprehensible

conduct would go unreported.”

Even documented workers may be chilled by the type of

discovery at issue here. Documented workers may fear that

their immigration status would be changed, or that their status

would reveal the immigration problems of their family or

> The fact that NIBCO has pledged not to use the plaintiffs’

immigration status to retaliate against them does not eliminate the

substantial risk of chilling the rights of these and future plaintiffs.

First, to overturn the magistrate judge’s protective order in this case

might effectively grant all future employers the right to discover the

immigration status of any of their employees who choose to assert a

Title VII national origin claim. Second, courts often fashion

protective orders designed to protect against anticipated retaliation.

In this circuit, for instance, we have held that the existence of post

hoc legal remedies for retaliation do not necessarily provide

adequate protection when plaintiffs anticipate retaliation that would

result in extraordinarily burdensome consequences. See Advanced

Textile Corp., 214 F.3d at 1071-72 (noting that “complaining

employees are more effectively protected from retaliation by

concealing their identities” than by relying on legal anti-retaliation

remedies).

> ae Se eee? ae ee ee

Yee SLA ee ee ean ee

Mae eee SPN Ce eee

_— ee

lla

friends; similarly, new legal residents or citizens may feel

intimidated by the prospect of having their immigration

history examined in a public proceeding. Any of these

individuals, failing to understand the relationship between

their litigation and immigration status, might choose to forego

civil rights litigation.

The chilling effect such discovery could have on the

bringing of civil rights actions unacceptably burdens the

public interest. The Supreme Court has recognized that

Congress intended to empower individuals to act as private

attorneys general in enforcing the provisions of Title VII.°

See N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63 (1980)

(finding that “Congress has cast the Title VII plaintiff in the

role of ‘a private attorney general,’ vindicating a policy ‘of

the highest priority’”); Alexander v. Gardner-Denver Co., 415

U.S. 36, 45 (1974) (“the private right of action remains an

essential means of obtaining judicial enforcement of Title

VII. . . . In such cases, the private litigant not only redresses

his own injury but also vindicates the important congressional

policy against discriminatory employment practices.”); see

also H.R. REP. NO. 102-40, pt. 2, at 34 (1991) (report of the

committee on the judiciary describing how the failure to

adequately compensate plaintiffs has a chilling effect on the

‘private attorneys general’ policy of the civil rights laws).’

Given Title VII’s dependence on private enforcement, we

find that the national effort to eradicate discrimination in the

workplace would be hampered by the discovery practices

NIBCO seeks to validate here. We therefore conclude that

discovery of each plaintiff’s immigration status constitutes a

° Title VII even allows the court, in some circumstances, to

appoint counsel for the complainant. 42 U.S.C. § 2000a-3(a).

’ FEHA also depends on private enforcement to effectuate its

goals. See Flannery v. Prentice, 26 Cal.4th 572, 582-83, 110 Cal.

Rptr. 2d 809, 28 P.3d 860 (2001) (construing attorneys fees

provisions to ensure proper incentives for private enforcement of

FEHA).

12a

substantial burden, both on the plaintiffs themselves and on

the public interest in enforcing Title VII and FEHA.

B. Balancing of Interests

Even if the discovery would burden plaintiffs and others

with an interest in enforcing Title VII and FEHA, the burden

must be “undue” in order to justify the protective order. See

FED. R. CIV. P. 26(c). We thus must examine NIBCO’s

various interests in discovering the immigration status

information. NIBCO asserts that because each plaintiff’s

immigration status governs her entitlement to reinstatement,

front pay, and back pay on Title VII claim, and governs any

recovery on her FEHA claim, it must be permitted to discover

this information. We consider NIBCO’s contentions below.

1. The Relevance of Hoffman Plastic

NIBCO’s principal argument is that the Supreme Court’s

decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535

U.S. 137 (2002), forecloses any award of backpay to an

undocumented plaintiff and therefore discovery of

documented or undocumented status is essential to its

defense.” We disagree.

In Hoffman, the Supreme Court reviewed an award of

backpay to illegal immigrants who, in violation of § 8(a)(3) of

the National Labor Relations Act (“NLRA”’), were terminated

because of their participation in the organization of a union.

535 U.S. at 140-41. The National Labor Relations Board

(“NLRB”) based its decision to award backpay on its

previous holding that the NLRA’s protections applied to

documented and undocumented workers alike. /d. at 141. The

* After Hoffman was decided, the plaintiffs agreed that if their

proposed in camera procedures were adopted, they would not seek

backpay for undocumented aliens. Following the issuance of the

protective order that is the subject of this interlocutory appeal, the

district court considered, but did not rule on, the proposed

procedures, including bifurcation of the trial into liability and

remedies phases.

13a

Supreme Court reversed the Board’s order. The precise —

question before the Court was whether the NLRB had the

authority under the NLRA to award backpay to

undocumented workers notwithstanding the prohibition on

hiring such workers in the Immigration Reform and Control

Act of 1986 (“IRCA”). Answering that question in the

negative, the majority also strongly suggested that the policy

goals of IRCA outweigh those of the NLRA, and therefore

that IRCA would preclude any backpay award to illegal

immigrants under the NLRA. 535 U.S. at 148-52.

NIBCO would have us go further and hold that: (a)

Hoffman precludes any award of backpay to an illegal

immigrant, no matter what federal statute the employer may

have violated; and (b) the district court is required to grant

the request for pre-trial discovery of the _ plaintiffs’

immigration status.

We seriously doubt that Hoffman is as broadly applicable

as NIBCO contends, and specifically believe it unlikely that it

applies in Title VII cases. The NLRA and Title VII are

different statutes in numerous respects. Congress gave them

distinct remedial schemes and vested their enforcement

agencies with different powers. For purposes of this opinion,

we note at least three significant differences between the two

statutes.

First, the NLRA authorizes only certain limited private

causes of action, while Title VII depends principally upon

private causes of action for enforcement. The NLRA is

enforced primarily through actions of the NLRB -— private

actions are available only in exceptional circumstances. See

NLRB vy. United Food & Commercial Workers Union, Local

23, AFLCIO, 484 U.S. 112, 118-19 (1987); Karahalios v.

Nat'l Fed’n of Fed. Employees, Local 1263, 489 U.S. 527,

536-37 (1989) (recognizing the exceptional actions for

breaches of the duty of fair representation and actions to

enforce collective bargaining agreements under § 301); Bd. of

14a

Trade v. SEC, 883 F.2d 525, 530 (7th Cir. 1989).’ Title VII,

by contrast, depends almost entirely upon individual workers

— private attorneys general — to achieve the deterrent purposes

of the statute. See N.Y. Gaslight Club, 447 U.S. at 63 (finding

that “Congress has cast the Title VII plaintiff in the role of ‘a

private attorney general,’ vindicating a policy ‘of the highest

priority’); Alexander, 415 U.S. at 45 (holding that “the

private right of action remains an essential means of obtaining

judicial enforcement of Title VII’ and noting that “the private

litigant not only redresses his own injury but also vindicates

the important congressional policy against discriminatory

employment practices”).

Second, Congress has armed Title VII plaintiffs with

remedies designed to punish employers who engage in

unlawful discriminatory acts, and to deter future

discrimination both by the defendant and by all other

employers. Title VII’s enforcement regime includes not only

traditional remedies for employment law violations, such as

backpay, frontpay, and _ reinstatement, but also _ full

compensatory and punitive damages. 42 U.S.C. § 1981la; see

also Pollard v. E. I. du Pont de Nemours & Co., 532 U.S.

843, 851-52 (2001). Congress added the latter types of

damages to Title VII in 1991 in order to facilitate the

deterrence of discrimination. See Civil Rights Act of 1991, §

3, 102 Pub. L. 166; 105 Stat. 1071, 1071 (“The Congress

finds that . . . additional remedies under Federal law are

needed to deter unlawful harassment and _ intentional

discrimination in the workplace.”); see also Pollard, 532 U.S.

at 852. This full complement of remedies accords with the

long-standing notion that Title VII requires courts to remedy

instances of discrimination by sending strong messages to

” This may explain why the Hoffman Court found that the

NLRA’s “traditional remedies,” such as cease and desist orders and

contempt proceedings, were “sufficient to effectuate national labor

policy regardless of whether” backpay was available. 535 U.S. at

152.

1Sa

would-be-discriminators. See Albemarle Paper Co. v. Moody,

422 U.S. 405, 418 (1975) (holding that, in order to achieve

“complete justice,” district courts have the obligation to

“render a decree which will so far as possible eliminate the

discriminatory effects of the past as well as bar like

discrimination in the future”) (emphasis added) (quotation

omitted).

Third, under the NLRA, the NLRB may award backpay

to workers when it has found that an employer has violated

the Act. Under Title VII, a federal court decides whether a

statutory violation warrants a backpay award.’ This

difference is significant given that Hoffman held that the

NLRB possesses only the discretion to “select and fashion

remedies for violations of the NLRA,” and that this

discretion, “though broad, is not unlimited.” 535 U.S. at 142-

43 (citations omitted). The Court held that, given the strong

policies underlying IRCA and the Board’s limited power to

construe statutes outside of its authority, the NLRB’s

construction of the NLRA was _ impermissible.'' This

'° This is not to say that the EEOC plays no role. To the

contrary, Title VII depends upon both action by the EEOC and

private enforcement to achieve its goals. See E.E.0.C. v. Waffle

House, Inc., 534 U.S. 279, 286 (2002). Along these lines, the

EEOC has been given broad authority not just to respond to

individual instances of discrimination, but to investigate

discrimination independently in an effort to eradicate it from the

economy. Cf. id. at 296 n.11 (noting that “we have generally been

reluctant to approve rules that may jeopardize the EEOC’s ability to

investigate and select cases from a broad sample of claims” because

“it is crucial that the Commission’s ability to investigate charges

of systemic discrimination not be impaired’) (quoting EEOC v.

Shell Oil Co., 466 U.S. 54, 69 (1984)).

'' See also Hoffman, 535 U.S. at 149 (holding that “awarding

backpay to illegal aliens runs counter to policies underlying IRCA,

policies the Board has no authority to enforce or administer,” and

therefore that “the award lies beyond the bounds of the Board’s

remedial discretion”); id. at 143 (“the Board has not been

16a

limitation on the Board’s authority says nothing regarding a

federal court's power to balance IRCA against Title VII if the

two statutes conflict. A district court has the very authority to

interpret both Title VII and IRCA that the NLRB lacks. Thus,

to the extent that Hoffman stands for a limitation on the

NLRB’s remedial discretion to interpret statutes other than

the NLRA, the decision appears not to be relevant to a Title

VII action. Cf. Smith v. Nat'l Steel & Shipbuilding Co., 125

F.3d 751, 757 (9th Cir. 1997) (holding that district courts

have the authority to construe competing statutes even when

the NLRB lacks it).

The differences between the two statutes persuade us that

Hoffman does not resolve the question whether federal courts

may award backpay to undocumented workers who have been

discharged in violation of Title VII. Resolving the conflicting

statutory policies involved in determining whether IRCA bars

such awards to employees discriminated against on the basis

of their national origin necessitates a different analysis than

the Court undertook in Hoffman. As we have pointed out, in

Title VII Congress has chosen to rely heavily, on private

actions that result in the imposition of severe remedies,

including backpay, in order to deter future discrimination and

vindicate national policy of the highest priority. It is far from

evident to us that Congress intended to bar the use of one of

the most critical of those remedies in the case of

undocumented workers who are victims of invidious

discrimination. In fact, given the importance of. private

actions to the enforcement scheme and of backpay to the

commissioned to effectuate the policies of the Labor Relations Act

so single-mindedly that it may wholly ignore other and equally

important congressional objectives”) (quoting Southern S.S. Co. v.

NLRB, 316 U.S. 31, 47 (1942); id. (“While the Board’s

interpretation of the NLRA should be given some deference, the

proposition that the Board’s interpretation of statutes outside its

expertise is likewise to be deferred to is novel”) (quoting NLRB vy.

Bildisco & Bildisco, 465 U.S. 513, 529 n.9 (1984)).

Le ER re Te ON Re es

4

~

7

7

oa

S

17a

bringing of private actions, we are strongly inclined to believe

that it did not. We are influenced in this view by the Court’s

statement in Albemarle Paper, 422 U.S. at 417-18, that it “‘is

the reasonably certain prospect of a backpay award that

provide(s) the spur or catalyst which causes employers and

unions to self-examine and to self-evaluate their employment

practices and to endeavor to eliminate, so far as possible, the

last vestiges of an unfortunate and ignominious page in this

country’s history” (internal citation and quotation marks

omitted). We are also influenced by our own court’s

conclusion that Title VII’s “central statutory purpose” is

“eradicating discrimination throughout the economy and

making persons whole for injuries suffered through past

discrimination.” McLean v. Runyon, 222 F.3d 1150, 1155 (9th

Cir. 2000) (quoting Albemarle Paper, 422 U.S. at 421).

Finally, we find it significant that the courts that have

considered Hoffman in analogous cases have thus far found it

to be inapplicable or distinguishable.'? In sum, the overriding

2 See Cano vy. Mallory Megmt., 195 Misc. 2d 666, 760 N.Y.

S.2d 816, 818 (N.Y. Sup. Ct. 2003) (collecting cases and noting

that “every case citing Hoffman since it was rendered has either

distinguished itself from it or has limited it greatly”); see also De

La Rosa v. N. Harvest Furniture, 210 F.R.D. 237, 238-39 (N.D. III.

2002) (reasoning that a federal district court’s remedial power

under Title VII differs from the NLRB’s power under the NLRA,

and thus that Hoffman was not “dispositive of the issues raised in

the motion to compel” discovery of immigration status in a Title

VII action); cf. Escobar v. Spartan Sec. Serv., 281 F. Supp. 2d 895,

897 (S.D. Tex. 2003) (holding that Hoffman “did not specifically

foreclose all remedies for undocumented workers under either the

National Labor Relations Act or other comparable federal labor

statutes”); Flores v. Albertsons, Inc., 2002 U.S. Dist. LEXIS 6171,

2002 WL 1163623, *5 (C.D. Cal. Apr. 9, 2002) (finding Hoffman

inapplicable to an FLSA action); Flores v. Amigon, 233 F. Supp. 2d~

462, 464-65 (E.D. N.Y. 2002) (holding that Hoffman does not bar

backpay under the FLSA and granting a protective order barring

discovery into the plaintiff's immigration status); Zeng Liu v.

18a

national] policy against discrimination would seem likely to

outweigh any bar against the payment of back wages to

unlawful immigrants in Title VII cases. Thus, we seriously

doubt that Hoffman applies in such actions.

We need not decide the Hoffman question in this case,

however. Regardless whether Hoffman applies in Title VII

cases, it is clear that it does not require a district court to

allow the discovery sought here. No backpay award has been

authorized in this litigation. Indeed, the plaintiffs have

proposed several options for ensuring that, whether or not

Hoffman applies, no award of backpay is given to any

undocumented alien in this proceeding. Thus, the very

problem NIBCO has identified may well never arise here.

Perhaps even more important, we have long recognized

“the distinction between a violation [of Title VII] and the

availability of remedies.” Hashimoto v. Dalton, 118 F.3d 671,

676 (9th Cir. 1997). The fact that a particular defendant's

violation of Title VII might be “inconsequential,” because the

plaintiff in question is not eligible for certain forms of relief,

merely “goes to the issue of damages, not liability.” Jd. The

information that NIBCO seeks is not relevant to determining

whether it has violated Title VII. See id. (quoting Smith v.

Secretary of Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981)

(“The questions of statutory violation and appropriate

statutory remedy are conceptually distinct. An illegal act of

discrimination — ether based on race or some other factor such

as a motive of reprisal — a wrong in itself under Title VII,

regardless of whether that wrong would warrant an award of

[remedies].”) (alterations from Hashimoto)). We recognize

Donna Karan Int'l, Inc., 207 F. Supp. 2d 191, 192-93 (S.D> N.Y.

2002) (questioning the applicability of Hoffman to the FLSA and

denying the defendant’s request to discover the plaintiff's

immigration status due to the danger of “intimidation, the danger of

destroying the cause of action, [and the risk that the discovery

would] inhibit plaintiffs in pursuing their rights” (internal quotation

marks omitted)).

19a

that discovering the various plaintiffs’ eligibility for particular

remedies would aid the defendant in making pre-trial

estimates of the damage award for which it might be

responsible if found liable. The convenience to NIBCO,

however, is substantially outweighed by the harm the

discovery would cause the plaintiffs. See supra at 4824-25.

Moreover, other remedies clearly remain available and

liability must be determined in any event. See, e.g., Farrar v.

Hobby, 506 U.S. 103, 112-14 (1992) (holding that even an

award of nominal damages is sufficient to allow an award of

attorney's fees); Ruffin v. Great Dane Trailers, 969 F.2d 989,

993 (9th Cir. 1992) (holding that a Title VII plaintiff may

recover attorney’s fees despite not recovering monetary

damages when he has prevailed in his request for injunctive

relief), cert. denied, 507 U.S. 910 (1993).

The district court has not yet ruled on the plaintiffs’

proposed bifurcated proceedings. Although we do not order

such proceedings here, it is clear that a separation between

liability and damages would be consistent with our prior case

law and would satisfy the concern that causes of action under

Title VII not be dismissed, or lost through intimidation, on

account of the existence of particular remedies. The principal

question to be decided in the action before us is whether

NIBCO violated Title VII. It makes no difference to the

resolution of that question whether some of the plaintiffs are

ineligible for certain forms of statutory relief. NIBCO’s

contention that discovery regarding the plaintiffs’

immigration status is essential to its defense is therefore

without merit.'* Accordingly, we hold that the district court

did not err when it declined to modify the protective order.

'> The EEOC has agreed with our conclusion in_ its

Enforcement Guidelines. The Commission has found that

The Supreme Court’s decision in Hoffman in no way

calls into question the settled principle that

undocumented workers are covered by the federal

employment discrimination statutes and that it is as

[BEST AVAILABLE COPY

20a

2. The After-Acquired Evidence Doctrine

NIBCO argues that the “after-acquired . evidence”

doctrine requires the district court to approve its discovery

request.'* The “‘after-acquired evidence” doctrine precludes

or limits an employee from receiving remedies for wrongful

discharge if the employer later “discovers” evidence of

wrongdoing that would have led to the employee’s

termination had the employer known of the misconduct.

McKennon v. Nashville Banner Publishing Co., 513 U.S. 352,

360-63 (1995). As we have explained, “an employer can

avoid backpay and other remedies by coming forward with

after-acquired evidence of an employee’s misconduct, but

only if it can prove by a preponderance of the evidence that it

would have fired the employee for that misconduct.” O’ Day

v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 761 (9th

Cir. 1996).

illegal for employers to discriminate against them as it is

to discriminate against individuals authorized to work.

When enforcing these laws, EEOC will not, on its own

initiative, inquire into a worker’s immigration status.

Nor will EEOC consider an individual’s immigration

status when examining the underlying merits of a

charge.

Equal Employment Opportunity Commission, Rescission of

Enforcement Guidance on Remedies Available to Undocumented

Workers Under Federal Employment Discrimination Laws (June

27, 2003), available at http://www.eeoc.gov/policy/docs/undoc-

rescind.html.

'* To the extent that NIBCO’s argument relates to the

availability of frontpay and reinstatement, it has been rendered

irrelevant as the successor employer is no longer a party to this

dispute.

Poe Naat tial 5 Ale tae ak hatte BS

nee

3

2la

The McKennon Court, interpreting the ADEA," balanced

the public policy interest in eliminating unlawful

discrimination against the equitable principle that an

employer should not be held liable for damages when the

employee invokes the aid of the court with unclean hands. /d.

at 361. The Court concluded that, “as a general rule in cases

[involving after-acquired evidence of wrongdoing], neither

reinstatement nor front pay is an appropriate remedy.” /d. at

361-62. Further, the Court held that “once an employer learns

about employee wrongdoing that would lead to a legitimate

discharge, we cannot require the employer to ignore the

information, even if it is acquired during the course of

discovery in a suit against the employer and even if the

information might have gone undiscovered absent the suit.”

Id. at 362.'° Yet the after-acquired evidence doctrine’s

application depends upon context — “the proper boundaries of

remedial relief must be addressed by the judicial system in the

ordinary course of further decisions, for the factual

permutations and the equitable considerations they raise will

vary from case to case.” /d. at 361."”

'S Although we have not yet applied the McKennon “after-

acquired evidence” rule to Title VII, McKennon itself makes clear

that the rule applies to both Title VII and the ADEA. See

McKennon, 513 U.S. at 358 (“The ADEA and Title VII share

common substantive features and also a common purpose: ‘the

elimination of discrimination in the workplace.’*) (quoting Oscar

Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979)). See also O'Day,

79 F.3d at 760-61 (discussing Title VII and the ADEA

interchangeably).

'© Therefore, the Court determined that backpay should be

awarded only from the date of the unlawful discharge to the date

the information is discovered. /d. Barring backpay entirely, the

Court found, would undermine the objectives of the ADEA. 513

USS. at 363.

'” See also id. at 358 (“It would not accord with [the remedial

scheme adopted by the federal civil rights laws] if after-acquired

evidence of wrongdoing that would have resulted in termination

22a

In this case, NIBCO has failed to come forward with any

evidence that would justify limiting the plaintiffs’ remedies.

NIBCO claims, instead, that the court was required to

facilitate its discovery of any such evidence by granting its

requests to interrogate the former employees regarding their

immigration status. We reject NIBCO’s claim. McKennon

does not direct courts to authorize the type of discovery

NIBCO seeks to conduct here. Although McKennon involved

illegal conduct that was “‘after-acquired” during a deposition,

the McKennon Court did not hold that depositions could be

conducted for the purpose of uncovering illegal actions. Even

if we concluded that McKennon authorizes district courts to

approve such discovery, that would be a far cry from holding

that McKennon requires a district court to order plaintiffs to

submit to intrusive and injurious investigations in order to

pursue a civil rights action. Moreover, the McKennon Court

insisted that the district courts would play a critical role in

preventing defendants from using the after-acquired evidence

doctrine as a sword rather than as a shield against

inappropriate damage awards. “The concern that employers

might as a routine matter undertake extensive discovery into

an employee’s background or performance on the job to resist

claims under the Act is not an insubstantial one, but we think

the authority of the courts to . . . invoke the apprepriate

provisions of the Federal Rules of Civil Procedure will deter

most abuses.” /d. at 363.

District courts need not condone the use of discovery to

engage in “fishing expeditions.” See, e.g., Exxon Corp. v.

Crosby-Mississippi Resources, Ltd., 40 F.3d 1474, 1487 (Sth

Cir. 1995). Accordingly, McKennon authorizes district courts

to invoke the Federal Rules of Civil Procedure when

necessary to prevent employers from using the discovery

process to engage in wholesale searches for evidence that

might serve to limit its damages for its wrongful conduct. The

operates, in every instance, to bar all relief for an earlier violation

of the Act.”) (emphasis added).

23a

magistrate judge straightforwardly applied these principles in

fashioning the protective order. Given the substantial risk of

chilling the plaintiffs’ rights, and the fact that all parties had

already stipulated that the plaintiffs are members of a

protected class under Title VII, the district court appropriately

used Rule 26(c) to preclude discovery that might otherwise

have allowed the employer to evade liability under Title VII.

Moreover, we note that before an employer may use

“after-acquired evidence,” it must meet its burden of showing

that, had it been aware of that evidence, it would have

forthwith discharged the employee. See O’Day, 79 F.3d at

758-59. Regrettably, many employers turn a blind eye to

immigration status during the hiring process; their aim is to

assemble a workforce that is both cheap to employ and that

minimizes their risk of being reported for violations of

statutory rights. Therefore, employers have a_ perverse

incentive to ignore immigration laws at the time of hiring but

insist upon their enforcement when their employees complain.

We have placed the burden of proof squarely on employers

who seek to assert an after-acquired evidence defense. /d. at

759 (“McKennon places the burden of proof with respect to

this issue on the employer, carefully articulating that the

employer must establish not only that it could have fired an

employee for the later-discovered misconduct, but that it

would in fact have done so.”). Thus, in the immigration

context, the employer must prove that it would actually have

fired the employees had it known that they were

undocumented. It does not appear that there is any evidence

in the record, at this stage of the litigation, that would tend to

satisfy NIBCO’s burden that it would have done so. In this

circumstance, a district court may well be reluctant to order

discovery that would inquire into the immigrant’s status,

given the harm that such investigations cause. See supra at

We conclude that the after-acquired evidence doctrine

did not require the district court to grant NIBCO’s discovery

request. Defendants may undoubtedly use the discovery

24a

process to obtain “relevant” evidence. Yet district courts have

the discretion to structure depositions and interrogatories in

ways that balance the defendant’s need to obtain evidence of

possible misconduct relevant only to remedies with the

burdens the plaintiffs would face if such discovery took place

before trial. Here, the balance the court struck was well within

its discretion.

3. Plaintiffs’ FEHA Claim

There is an additional dispute concerning whether the

plaintiffs’ immigration status is relevant to their FEHA

claims. NIBCO relies on two California cases that adopt the

reasoning of McKennon: Murillo v. Rite Stuff Foods, Inc., 65

Cal. App. 4th 833 (1998) and Camp v. Jeffer, Mangels,

Butler, & Marmaro, 35 Cal. App. 4th 620 (1995). The Camp

decision stands for the proposition that an employee who

illegally acquires a job may not recover on a claim for

wrongful discharge. See Camp, 35 Cal. App. 4th at 639.

Murillo upheld Camp as applied to an undocumented alien by

ruling that, though an illegal alien cannot state a claim for

wrongful discharge, he may recover for illegal harassment

suffered during the employment. See Murillo, 65 Cal. App.

4th at 847-51.

Both of these decisions, however, predate the California

legislature’s response to Hoffman. In:September 2002, just

over five months after Hoffman was decided, California

enacted a statute codifying identical provisions in three

sections of its codes: “All protections, rights, and remedies

available under state law, except any reinstatement remedy

prohibited by federal law, are available to all individuals

regardless of immigration status who have applied for

employment, or who are or who have been employed, in this

state.” CAL. CIV. CODE § 3339(a); CAL. GOV’T CODE

§ 7285(a); CAL. LAB. CODE § 1171.5(a). Thus, California

appears to have provided for a wide range of monetary

remedies including some that may not be available to

25a

undocumented workers under Title VII; accordingly, Camp

and Murillo may no longer be good law.

Were the district court to award backpay to plaintiffs

found to be illegal immigrants, a conflict might arise between

IRCA and California law. However, given our holding that

the liability stage may go forward without deciding the

question of what remedies are available, there is no need for

us to engage in a preemption analysis now. Only in the event

that the district court finds NIBCO liable and then decides,

after considering its various factual and legal options, to

award backpay to illegal immigrants will it become necessary

for us to decide the preemption question. See supra note 8.

4. IRCA’s Reverification Provision

Finally, both parties have advanced arguments about the

relevance of IRCA to this dispute. The plaintiffs have argued

that IRCA prohibits the requested discovery; NIBCO

maintains that, after Hoffman, IRCA prohibits the protective

order. We have discussed NIBCO’s contention above. We

now turn to the plaintiffs’ contention and find it meritless.

The essence of the plaintiffs’ argument is that NIBCO’s

discovery request violates IRCA’s prohibition on “document

reverification.” See 8 U.S.C. § 1324b(a)(6). IRCA generally

prohibits employers from requesting “more or different”

documents than those specified in the statute when evaluating

an individual’s immigration status upon hiring, recruiting, or

referring them for employment.'* The Office of the Chief

'* 8 U.S.C. § 1324b(a)(6) states: “tA person’s or other entity’s

request, for the purposes of satisfying the requirements of section

1324a(b) of this title [concerning hiring, recruiting, or referring],

for more- or different documents than are required under

[§ 1324a(b)] or refusing to honor documents tendered that on their

face reasonably appear to be genuine shall be treated as an unfair

immigration-related employment practice if made for the purpose

or with the intent of discriminating against any individual [other

than an unprotected undocumented alien on the basis of national

origin or citizenship status.]”

eo...

26a

Administrative Hearing Officer (“OCAHO”), in the

Executive Office for Immigration Review of the Justice A

Department, has interpreted the relevant provision to require Fi

plaintiffs to establish “(1) that the [defendant] is a person or

other entity which makes a request; (2) for more or different

documents than are required by the employment verification

system; and (3) that the request was made for purposes of

complying with the provisions of 8 U.S.C. § 1324a(b).”

United States v. Townsend Culinary, 8 OCAHO 1032, 1999

WL 1295209, *33 (1999). This court also requires that the

plaintiff prove that the employer had a discriminatory intent.

Robison Fruit Ranch, Inc. v. United States, 147 F.3d 798,

801-02 (9th Cir. 1998).

Nothing in the text, structure, or legislative history of

IRCA suggests that the “reverification” provision regulates

the discovery process. Rather, the provision concerns the

documents that an employer may request when fulfilling its

mandatory duty to investigate immigration status upon hiring,

recruiting, or referring new employees. See 8 U.S.C.

§ § 1324a(b), 1324b(a)(6). What documents an employer may

investigate in the context of a lawsuit is beyond the scope of

the cited IRCA provisions.

Nevertheless, we agree with the district court that the

magistrate judge did not rely on IRCA to justify its protective

order. That the protective order comports with one of the

purposes of IRCA’s reverification provision — to prevent

employers from intimidating workers from exercising their

rights by repeatedly raising the specter of deportation — does

not mean that the protective order depended upon IRCA for

legal support. The district court rightly considered the threat

of intimidation and retaliation when assessing the burden the

discovery would place on the plaintiffs. We find that while

IRCA does not require the protective order the magistrate

judge issued, neither does the Act show that the protective

order was “contrary to law.”

IV. Conclusion

21a

We hold that the district court properly exercised its

discretion in concluding that NIBCO’s proposed discovery

placed an “undue burden” on the plaintiffs.'" The court did

not err in determining that it would substantially burden the

plaintiffs to allow the defendant to use the discovery process

to inquire into their immigration status — a status that NIBCO

had the opportunity to examine upon hiring and that is

irrelevant to the question of liability. We seriously doubt that

Hoffman’s prohibition of NLRB-authorized backpay awards

under the NLRA serves to prohibit a district court from

awarding backpay to a Title VII plaintiff. But even if we were

to conclude that Hoffinan did preclude backpay awards to

illegal immigrants under all federal statutes, it would not

matter in this case. Hoffman does not make immigration

status relevant to the determination whether a defendant has

' We differ with our concurring colleague in only minor

respects. We do not agree that it might be “more efficient,” post at

4843, to allow NIBCO to question the plaintiffs concerning their

immigration status during the liability phase of the trial. Indeed, in

our view, such questioning might be profoundly inefficient if, as

seems likely to us, it might serve to discourage legal and illegal

immigrants alike from pursuing their potentially valid legal claims

not only in this case, but in future cases as well. Moreover, we do

not believe it correct to state that the district court may allow

NIBCO to inquire into the information now protected once

“liability has been ascertained.” See post, at 4843. Whether it

would be proper for such discovery to proceed depends on the

outcome of two issues about which there is considerable doubt.

First, although we have left open the question whether Hoffman

applies in a Title VII action, we emphasize that we have serious

reservations about its applicability. Second, as for McKennon, the

record does not indicate whether NIBCO would be able to satisfy

its burden of proof under O’Day, 79 F.3d at 758-59. Only if

NIBCO came forward with persuasive evidence regarding its

practices and policies would it be appropriate for it to inquire into

the plaintiffs’ immigration status under the after-acquired evidence

doctrine.

28a

committed national origin discrimination under Title VII. If

the district court decides to bifurcate the proceeding, as the

plaintiffs have requested, the availability of backpay remedies

for certain plaintiffs will be determined, if at all, only after the

liability phase. Similarly, neither IRCA nor the after-acquired

evidence doctrine requires the district court to allow NIBCO’s

requested discovery. It was neither erroneous nor contrary to

law for the district court to protect the plaintiffs, and the

public interest, from being unduly burdened by issuing the

protective order.

We AFFIRM the decision of the district court and

REMAND for further proceedings consistent with this

opinion.

eae ee rr tek

SILER, Circuit Judge, concurring:

I write separately in concurring because I would affirm

the ruling of the magistrate judge in denying discovery as not

being clearly erroneous or contrary to law, as stated in the

majority opinion. Had the magistrate judge ruled to the

contrary, that is, denied a protective order, I might very well

affirm any appeal by the plaintiffs for a denial of the

protective order on the same basis, that is, the ruling was not

clearly erroneous or contrary to law.

If the district court decides to bifurcate the trial on the

issues of liability and damages, the documented status of the

plaintiffs would not likely be relevant in the first part of the

trial. It might be more efficient if the district court allowed

NIBCO to question the plaintiffs concerning _ their

documented status during the liability phase, because the

information might give rise to motions for summary judgment

early in the proceedings. However, we are not here to rule on

the efficiency of the district courts in moving cases through

their dockets.

It appears to me, as the majority admits, that it is

arguable that either Hoffman Plastic Compounds, Inc. v.

29a

NLRB, 535 U.S. 137 (2002); or McKennon v. Nashville

Banner Publ’n Co., 513 U.S. 352 (1995), would preclude the

award of damages, at least in part, for an undocumented

worker. The applicability of either of those decisions,

however, would be up to this court in a direct appeal from any

damage award. Therefore, the district court may later in its

proceedings after liability has been ascertained allow NIBCO

to inquire into these matters that are now protected.

I emphasize that this is an interlocutory appeal, not on the

merits of this case. Unless this case is resolved by settlement,

it will be up to this court to resolve many of these issues on

direct appeal later.

30a

MARTHA RIVERA; MAO HER; ALICIA ALVAREZ; EVA

ARIOLA; PEUANG BOUNNHONG; ROSA CEJA;

CHHOM CHAN; BEE LEE; PAULA MARTINEZ; MARIA

DOMITILIA MEDINA; MAI MEEMOUA; MARGARITA

MENDOZA; BAO NHIA MOUA; ISIDRA MURILLO;

MARIA NAVARRO; VATH RATTANATAY; OFELIA

RIVERA; SARA RIVERA; MARIA RODRIGUEZ; MARIA

RUIZ; MARIA VALDIVIA; SY VANG; YOUA XIONG;

SEE YANG; XHUE YANG, Plaintiffs-Appellees,

v.

NIBCO, INC., an Indiana corporation, Defendant-Appellant.

No. 02-16532

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

Filed September 20, 2004

Before: Stephen Reinhardt, Eugene E. Siler, Jr.,* and Michael

Daly Hawkins, Circuit Judges.

Order;

Dissent by Judge Bea

—

*Honorable Eugene E. Siler, Jr., Senior Judge for the United

States Circuit Court of Appeals for the Sixth Circuit, sitting

by designation.

ORDER

Judges Reinhardt, Siler and Hawkins voted to deny the

petition for rehearing. Judges Reinhardt and Hawkins voted to

deny the petition for rehearing en banc and Judge Siler so

recommended:

The full court was advised of the petition for rehearing en

banc. A judge requested a vote on whether to rehear the

matter en banc. The matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc

reconsideration. FED. R. APP. P. 35.

The petitions for rehearing and rehearing en banc are

denied.

BEA, Circuit Judge, with whom Circuit Judges KOZINSKI,

KLEINFELD and GOULD join, dissenting from the denial of

rehearing en banc:

The panel’s decision allows a plaintiff who claims that

racially discriminatory firing caused backpay and frontpay

lost wages, to refuse to answer deposition questions touching

on her place of birth and immigration status.

Thus, the panel’s decision impedes the ascertainment of

the truth in advance of trial, thereby profoundly subverting

the purposes of liberal Discovery in civil cases. The decision

also frustrates the purposes of national Immigration policy: to

limit employment benefits to American citizens and foreign

persons authorized to work in this country.

It may be tempting to increase the settlement value or the

award of a minority worker’s racial discrimination lawsuit by

allowing her to include claimed lost wages and_ bar

questioning of her immigration status. After all, the employer

hired her and benefitted from her labor. While she was

32a

working, the employer did not dig too deep into whether her

papers were in order. Now that she asserts her civil rights

against the employer’s claimed discriminatory firing, the

employer gets righteous, and for all the wrong reasons.

If estoppel by the employer’s acts could bar enforcement

of our country’s Immigration laws, the panel’s opinion might

not be so objectionable. Of course, we know such private

conduct cannot frustrate explicitly stated congressional public

policy. See Hoffman Plastic Compounds, Inc. v. NLRB, 535

U.S. 137, 151-52 (2002) (holding that plaintiffs, who were

unauthorized aliens, were not entitled to backpay as a remedy

for violation of the NLRA because such remedy would

“unduly trench upon” federal immigration policy expressed in

the IRCA).

We risk corrupting an admirable civil rights policy to

prevent discrimination when we rely on evasions to enforce it.

Further, such evasions are not necessary to enforce that policy

were the plaintiffs forthrightly to waive only one of their

money claims, the one based on a possibly illegal contract,

while retaining other money, equitable and counsel fees’

claims.

The fact is that if plaintiffs do not have authorized

immigration status, they are not entitled to be awarded back

wages or wages they might have earned in the future from a

job which they were incapable of holding, under our

Immigration laws. See Hoffman Plastics Compounds, Inc.,

535 U.S. at 151-52.

To justify evading this obvious fact, the panel generates a

fog of half-convincing procedural distractions, all of which

disappear when examined under the light of principled

reasoning and authorities.

1. The standard of review dictates the result?

Arguing the district court’s decision affirming the

Magistrate’s order is “only” a Discovery order, and decides

none of the merits, the panel seems to be deciding only a

33a

preliminary matter which, if wrong, can later be dealt with by

the same trial court sometime before trial, or in trial.

This is precisely against the view of this court that the

broad right of discovery is “based on the general principle

that litigants have a right to ‘every man’s evidence,’ and that

wide access to relevant facts serves the integrity and fairness

of the judicial process by promoting the search for the truth.”

Shoen v. Schoen, 5 F.3d 1289, 1292 (9th Cir. 1993) (internal

quotation marks and citations omitted).

Since the adoption of the Federal Rules of Civil

Procedure in 1938, the courts have consistently held that

Discovery was to serve as a device to clarify the basic issues

between the parties. See Hickman v. Taylor, 329 U.S. 495,

501 (1947) (“the various instruments of discovery now serve

(1) as a device, along with the pre-trial hearing under Rule 16,

to narrow and clarify the basic issues between the parties, and

(2) as a device for ascertaining the facts, or information as to

the existence or whereabouts of facts, relative to those

issues’’).

Further, pre-trial discovery has been recognized as an

essential means for evaluation of damages, so that settlements

can be achieved. See United States v Meyer, 398 F.2d 66, 71

(9th Cir. 1968) (noting that encouraging settlements is a basic

purpose of pre-trial discovery).

Absent bifurcation or phasing of issues by case

management procedures,' there simply is no principled reason

for delaying frank investigation of the nature and extent of

damages, unless it is a desire to advantage the plaintiffs, at

least temporarily, and for the purposes of driving a higher

settlement. Tellingly, the district court did not indicate that it

was premature to consider discovery into wage loss claims.

The panel’s decision could be read merely as an

affirmance of the trial court’s exercise of discretion in case

' The district court failed to act on suggestions of bifurcation.

See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1068 (9th Cir. 2004).

34a

management “at this early stage in the litigation.” Rivera,

364 F.3d at 1064. If that is what the panel meant, it was

wrong. The use of “early stage” is merely a characterization

of an abstraction to avoid the facts of this case. What is likely,

or even possible, to change as to the wage loss claim in the

course of the litigation? Plaintiffs either did or did not suffer

wage loss, depending on whether they had a legal right to

hold their jobs. When is it “too soon” to ask a plaintiff

claiming damages questions of fact as to whether she was and

is legally entitled to those damages?’

Another abstraction presented, but unexamined, by the

panel is the concept the district court engaged in: a “balancing

of hardships,” a basis of decision to which much discretion is

given. See Rivera, 204 F.R.D. 647, 649 (E.D. Cal. 2001). Let

us then examine the hardships:

a. Plaintiffs’ hardships.

If forced to answer birthplace and immigration status

questions, plaintiffs will suffer the hardships of (a) possibly

admitting lack of American citizenship or visa status

? By granting the protective order, the district court improperly

thwarted a core purpose of discovery: facilitation of settlement.

Discovery that a plaintiff is not entitled to back wages because of

her unauthorized alien immigration status would drive down the

monetary value of the claim, and let both sides more realistically

assess whether litigation for the value of the remaining claim is

worthwhile. Indeed, “discovery on damages not only assists the

parties in preparing for trial, it also educates each party on the

other’s view of the damages, which, in turn, assists each party in

evaluating essential elements of the matters in issue and in

assessing the risks associated with an adverse decision in the

action.” Johns Hopkins Univ. v. Cellpro, 160 F.R.D. 30, 35 (D.

Del. 1995). What is more, it will allow the defendant to make an

offer of settlement by way of permission to take judgment in an

amount, cutting off the plaintiffs’ right to recover costs and

attorneys’ fees if the eventual award does not exceed the offer of

judgment. See FED. R. CIV. P. 68; Mallory v. Eyrich, 922 F.2d

1273, 1278 (6th Cir. 1991).

35a

permitting work and thereby lose the right to recover wage

losses, past and future, and (b) risk providing evidence of lack

of authorized alien status to the authorities, leading to

possible removal from the United States.

Both of these “hardships” are merely threats to end

plaintiffs’ enjoying benefits to which they are not entitled

under the law.

b. Defendant’ s hardships.

Defendant will have to prepare for trial or enter into

settlement negotiations without essential proof to defend

against the claims for wage loss, past and future, as well as

foundational evidence (place of birth) for actuarial projections

for the possible extent of non-economic damages (duration of

emotional distress).

Both of these hardships are deprivations of rights

heretofore guaranteed to the defendant by the Federal Rules

of Civil Procedure (Rule 26 et seg.) for preparation of its

defense at trial.

~ Hence, the “balancing of the hardships” involves the

preservation of illegal benefits (to plaintiffs) versus the

vindication of trial preparation rights granted to all litigants

(defendant).

I respectfully submit that when viewed in the facts of this

case, rather than as an airy abstraction, the “balance of

hardships” makes the district court ruling for the plaintiff

“clearly erroneous or contrary to law.” Where, as here, a

district court’s discovery order is “clearly erroneous or

contrary to law,” the function of this court is not to ignore it,

but to correct it. See FED. R. CIV. P. 72(a); see also Osband

v. Woodford, 290 F.3d 1036, 1041 (9th Cir. 2002).

2. Plaintiffs’ place of birth is irrelevant to the issues?

The basis of the panel’s decision was solely that

discovery as to the plaintiffs’ place of birth is irrelevant; and

that discovery as to their immigration status would have a

“chilling effect” on the plaintiffs’ exercise of their civil rights.

36a

See Rivera, 364 F.3d at 1062, 1064. Let us first examine the

“irrelevancy” of plaintiffs’ place of birth.

This determination is so clearly wrong, the panel’s

decision shies from touching it. First, the protective order

prohibits questioning into plaintiffs’ place of birth on the

grounds that place of birth was “not relevant” to plaintiffs’

claims. Rivera v. NIBCO, Inc., 204 F.R.D. 647, 649 (E.D.

Cal. 2001) (“there appears to be no dispute that each plainuff

is a member of a protected class, and further questions

regarding where each plaintiff was born has no relevance to

this action’’). That ruling is clearly incorrect and demonstrates

ignorance of issues of damages common to trials. Plaintiffs’

place of birth is relevant insofar as longevity is the

multiplicand in the computation of frontpay damages; it is

also relevant to the calculation of the duration of emotional

distress damages. For example, a woman born in the U.S. has

a life expectancy of 80.05 years; while a woman born in

Mexico has a life expectancy of 75.49 years. See CIA World

Factbook, 2004. As any trial lawyer knows, the longer the life

expectancy, the higher the economic and non-economic

damages claims which can be presented to the jury on the

“blackboard” in final argument. :

It will not do to say the relevance of this issue is only

marginal and that the trial court was in the best position to

judge its relevancy against the harm it might produce and that

we should accord discretion to its relevancy ruling. The

record plainly shows the trial court — and indeed this panel —

never considered nor weighed the significance of this life

expectancy evidence as a factor in computation of damages.

3. Plaintiffs’ immigration status need not be revealed?

Plaintiffs’ immigration status is relevant in two respects:

(1) under the Supreme Court’s decision in Hoffman,

unauthorized aliens are not entitled to backpay and frontpay

37a

damages under Title VII’ and (2) under the after-acquired

evidence doctrine, plaintiffs are precluded from recovering

backpay and frontpay damages for discrimination under Title

VII, once an employer discovers that plaintiffs are

unauthorized aliens, if the employer proves that upon

discovery of the unauthorized alien status, the employer

* The panel concludes that even if Hoffman precludes an award

of backpay under Title VII, defendants are nevertheless still not

entitled to a protective order because “Hoffman does not make

immigration status relevant to the determination whether a

defendant has committed national origin discrimination under Title

VII.” Rivera, 364 F.3d at 1074-1075. That is, the panel concludes

that even if immigration status is relevant to a determination of

damages, it is not relevant to a determination of /iability. See

Rivera, 364 F.3d at 1069-70 (that the plaintiff is not eligible for

certain remedies “merely goes to the issue of damages, not

liability”). The panel’s opinion signals a notion that a finding of

liability alone can be a sufficient and satisfactory object of the

action. In so doing, the panel overlooks basic tort law: a claim for

relief requires not only a breach of duty, but also that the breach of

duty caused damages. A breach of duty, without damages, is not

actionable. However, discovery is generally not limited to relevant

evidence of liability, but includes damages as well. See, e.g., Dogan

Enters. v. Hubsher, 1987 WL 20312, *6 (E.D.N.Y. 1987) (“pretrial

discovery as to damages is generally available since issues of

liability and damages normally yo to the jury at the same time”);

Technograph, Inc. v. Texas Instruments, Inc., 43 F.R.D. 416, 419

(S.D.N.Y. 1967) (“In general, discovery before trial as to damages

is proper’). It makes no sense to bifurcate-the proceedings for

discovery purposes unless the court is going to “stage” proceedings

to avoid needless discovery costs. In the final analysis, the panel

correctly declines to bifurcate the proceeding. That-decision is, in

the first instance, a prerogative of the district court; the district

court has not adopted bifurcation. But if no bifurcation occurs,

defendants will not get another opportunity to take discovery with

respect to damages. /d. at 1075. It also bears repeating the district

court has not bifurcated the trial into liability and damages phases,

so that a special verdict on liability above will not be rendered.

38a

would have complied with the law and terminated the

employee’s employment.’ Indeed, the magistrate judge

acknowledged that plaintiffs’ immigration status was relevant

to the litigation, but nonetheless issued a protective order

prohibiting questioning into plaintiffs’ immigration status on

the ground that allowing defendant to so inquire would

“unnecessarily chill legitimate claims of undocumented

workers under Title VII.” Rivera, 364 F.3d at 1062; see also

Rivera, 204 F.R.D. at 649. Accordingly, the magistrate judge

“barred all discovery” into plaintiffs’ immigration status, but

inexplicably “did not preclude NIBCO from conducting its

own investigation.” Rivera, 364 F.3d at 1062. It is

contradictory to say that NIBCO can continue to investigate

plaintiffs’ immigrant status — which it could use to “rat out”

the plaintiffs to the immigration authorities — but cannot ask

plaintiffs that question on deposition. The magistrate judge’s

order is an incomplete remedy inasmuch as it is not

accompanied by an in limine order precluding defendant from

introducing such evidence at trial.” By granting the protective

* See, e.g., McKennon v. Nashville Banner Publishing Co., 513

U.S. 352, 360-363 (1995) (noting that under the after-acquired

evidence doctrine, an employee is precluded from receiving

damages for wrongful discharge where the employer discovers

evidence of wrongdoing that would have led to the employee’s

termination if the employer had known of the wrongdoing).

* One must object to the mischief created — however

unwittingly — by the magistrate judge’s order. The district court’s

order would allow the defendant to conduct an independent

investigation as to plaintiffs’ immigration status, but not to ask

about it during deposition. Surely plaintiffs would use the discovery

process as a sword and ask defendant whether it had discovered

plaintiffs’ immigration status. Defendant’s answer would allow

plaintiffs to tailor their testimony. But before trial, and before

plaintiffs’ choice as to what position to take were made, a risk of

litigation would continue to add to the plaintiffs’ leverage in

settlement because the most unassailable method of proving the

truth would continue to be forbidden. See Fletcher v. Union Pacific

39a

order, the district court improperly denied defendant access to

relevant information and thwarted the settlement purpose of

discovery.

4. Plaintiff s exercise of her civil rights will be affected

by the “chilling effect” of pre-trial discovery of her

immigration status?

The federal rules provide for limitations on discovery in

order to protect a person or party from “annoyance,

embarrassment, oppression, or undue burden or expense.”

FED. R. CIV. P. 26(c)). “If a court finds particularized harm

will result from disclosure of information to the public, then it

balances the public and private interests to decide whether a

protective order is necessary.” Rivera, 364 F.3d at 1063-64

(quoting Phillips ex rel. Estates of Byrd v. General Motors

Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002)).

In general, the party seeking a protective order for

discovery materials must demonstrate that “good cause”

exists for the protection of that evidence. “Good cause”’ is

established where it is specifically demonstrated that

disclosure will cause a “specific prejudice or harm.” Phillips,

307 F.3d at 1211-12. Courts have held that the showing of

“good cause” under Rule 26 is a heavy burden. See

Blankenship v. Hearst Corp., 519 F.2d 418 (9th Cir. 1975).

“Broad allegations of harm, unsubstantiated by specific

examples or articulated reasoning, do not satisfy the Rule

26(c)) test.” Phillips, 307 F.3d at 1211-12 (citing Beckman

Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir.

1992)).°

R.R. Co., 194 F.R.D. 666, 670 (S.D. Cal. 2000) (Plaintiff is entitled

to obtain pre-trial discovery of video surveillance tapes where

plaintiff demonstrates substantial need for them and demonstrates

that he cannot obtain without undue hardship).

° In balancing private and public interests, courts have looked

to the following factors:

(1) whether disclosure will violate any privacy interests;

40a

In the instant case, in upholding the validity of the

protective order, the panel concludes — in little more than an

ipse dixit — that disclosure of plaintiffs’ immigration status

would have a “chilling effect” on plaintiffs’ willingness to

assert their statutory rights and that this “chilling effect”

outweighs defendant’s interest in obtaining such evidence.

Indeed, the panel notes repeatedly that allowing employers to

inquire into plaintiffs’ immigration status would have a

“chilling effect” on plaintiffs’ willingness to seek redress for

violations of their workplace rights. See Rivera, 364 F.3d at

1061, 1062, 1064-65, 1065 n.5, 1072 (nine references to

“chill” or “chilling effect’”’).’ This argument is a shibboleth.

(2) whether the information being sought is for a

legitimate purpose or for an improper purpose;

(3) whether disclosure of the information will cause a

party embarrassment;

(4) whether confidentiality is being sought over

information important to public health and safety;

(5) whether the sharing of information among litigants

will promote fairness and efficiency;

(6) whether a party benefitting from the order of

confidentiality is a public entity or official; and

(7) whether the case involves issues important to the

public.

See generally Phillips ex rel. Estates of Byrd vy. General

Motors Corp., 307 F.3d 1206, 1211-12 (9th Cir. 2002) (citing

Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir.

1995)).

’ The term “chilling effect” was first introduced into the legal

lexicon by Justice Frankfurter in his concurring opinion in Wieman

v. Updegraff, 344 U.S. 183, 195 (1952) (requirement that teachers

take anti-Communist oath “has an unmistakable tendency to chill

that free play of the spirit which all teachers ought especially to

cultivate and practice”). See Donohoe v. Duling, 465 F.2d 196, 199

n. 6 (4th Cir. 1972) (discussing history of the term). The term is

usually used in connection with analyzing restrictions of free

speech under the First Amendment. In such cases, a party is

deprived of the ability to engage in certain forms of speech,

4la

While it may be a polemical argument appealing to some, the

panel points to no evidence to substantiate its conclusion that

anyone in this lawsuit would be so “chilled.” Under the law,

evidence, not speculation, is required. See King v. Conde, 121

F.R.D. 180, 193 (E.D.N.Y. 1988) (balancing interests and

denying police officers a protective order where officers

failed to produce evidence of “chilling effect” on officer’s

candor in civil rights cases; court concluded “there is no

empirical evidence of which this court is aware supporting the

‘chilling’ contention’).

Perhaps the lack of evidence here should not be

surprising, given that the panel’s ipse dixit hunch is wrong.

“Unchilled” but unauthorized aliens are not only entitled to,

but have sought emotional distress. damages, punitive

damages, and aitorneys’ fees under Title VII and the

California Fair Employment Housing Act and have, in fact,

sought to vindicate their workplace rights. I point to 17

“unchilled” plaintiffs, represented by San Francisco’s La

Raza Centro Legal and pro bono attorneys who brought suit

in Aguilar v. Avis Rent-A-Car System, Inc., 45 Cal. App. 4th

933, 973 (1996), aff'd, 21 Cal. 4th 121 (1999), cert. denied,

529 U.S. 1138 (May 22, 2000) (Thomas, J., dissenting).*

guaranteed under the First Amendment, for fear of being

prosecuted. Such cases are far different from the instant case, in

which the plaintiffs allege that the so-called “chilling effect”

dissuades them from maintaining a civil action seeking certain

economic damages (i.e., backpay, frontpay and/or reinstatement),

which are not only not guaranteed them, but are prohibited them, if

they have no legal right to hold the job. It may be wrong to chill a

teacher’s “spirit” to range freely over unchartered grounds in a

search for knowledge, but what is wrong with “chilling” the

bringing of an ultimately unmeritorious claim for economic

damages?

* At plaintiffs’ request, the trial court granted an in limine

order banning questioning of plaintiffs’ immigration status, but

only after plaintiffs had waived claims for backpay and frontpay

42a

Hispanic plaintiffs, without proof of immigration status,

recovered emotional distress damages and attorneys’ fees. See

Aguilar (awarding emotional distress damages and attorneys’

fees to Hispanic employees who brought suit for employment

discrimination under FEHA, the California analogue to Title

VID).

The panel instead asserts that “the caselaw substantiates”

the panel’s fear that plaintiffs will be “chilled.” In support of

its assertion, che panel cites cases in which employees

claimed to have been retaliated against when they sued their

employer for violations of civil rights and labor laws. See

Rivera, 364 F.3d at 1064. First, plaintiffs clearly did bring

claims in those cases, regardless of the asserted “chilling

effect.” Second, that unauthorized aliens fear the legal

consequences of breaking the law ought not prevent

defendants from proving that plaintiffs are not entitled to

certain forms of relief.’

Moreover, the panel notes that the Ninth Circuit had

awarded backpay and frontpay to unauthorized aliens before

Hoffman. See Rivera, 364 F.3d at 1064 & n. 4. Rather than

(loss of wages) caused by the claimed discrimination. I was the trial

judge.

” Moreover, the panel cites a law review article by Michael J.

Wishnie, /mmigrants and the Right to Petition, 78 N.Y.U. L. REV.

667, 676-79 (2003) for the proposition that unauthorized aliens are

“reluctant to report a variety of labor and employment law

violation.” Rivera, 364 F.3d at 1065. Tellingly, however, that same

law review article concedes that “though common sense suggests

that undocumented workers are reluctant to report labor and

employment violations to law enforcement agencies for fear they

will expose themselves to deportation — and that this reluctance

fosters further exploitation — there has been little empirical

research on the extent and causes of immigrant underreporting.”

Id. at 677 (emphasis added). “Common sense,” particularly that of

special pleaders, should not be accepted as a substitute for

evidence.

43a

any evidence that unauthorized workers were “chilled” in the

exercise of their civil rights, we have evidence they were not

“chilled” from vindicating their rights under Title VII. See

EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989)

(awarding backpay to five unauthorized aliens in a Title VII

action) and Rios v. Enterprise Asso. Steamfitters Local Union

638 of U.A., 860 F.2d 1168 (2d Cir. 1988) (six unauthorized

aliens sought backpay under Title VII). See also Patel v.

Quality Inn South, 846 F.2d 700, 705 (11th Cir. 1988)

(unauthorized alien sought backpay under Fair Labor

Standards Act); Local 512, Warehouse & Office Workers’

Union v. NLRB, 795 F.2d 705, 718 (9th Cir. 1986)

(unauthorized aliens entitled -to backpay for employers’

violations of the FLSA), overruled by Hoffman Plastics;

Alvarez v. Sanchez, 482 N.Y.S.2d 184 (4th Dep’t 1984)

(unauthorized alien sued for backpay for employer’s violation

of the FLSA); Lopez v. Superflex, Ltd., 2002 WL 1941484,

*2 (S.D.N.Y. Aug. 21, 2002) (unauthorized alien sued for

backpay for employer’s violation of the ADA and New York

State Human Rights Law).

Against this phalanx of unauthorized alien plaintiffs and

Governmental institutions (EEOC, California Department of

Fair Employment and Housing, etc.), which have acted to

vindicate anti-discrimination-in-employment rights, where in

the panel opinion is the citation of any evidence of the

claimed “chilling effect’? Where is the affidavit of a

frustrated “Doe” claimant who claims he was “chilled” into

lamb-like acceptance of civil rights violations? Where is the

affidavit of the sociological expert witness, a fixture of civil

rights litigation for 50 years, attesting to the psychological

fear which prevents litigation? Where is the affidavit of a

field investigator to show that dozens of wronged plaintiffs

are cowering in fear of detection should they approach the

courthouse?

Dare it be mentioned? Where is the affidavit of an

attorney for an activist organization who, whilst keeping the

names of the “chilled” confidential, tells us of the cases he

44a

has not been able to bring because of the “chilling effect” that

such potential clients would be informed upon by vengeful

employer defendants?

Moreover, the panel argues that employers will use

plaintiffs’ immigration status to “rat out” the plaintiff to the

U.S. Immigration and Customs Enforcement Bureau." But

isn’t this exactly what a good citizen should do: denounce a

crime which has been committed? Apparently, what the panel

wants the employer to do is to keep it quiet if it learns of the

felony." _

As a general rule, a citizen has no duty to denounce a

crime he has seen committed, but if he knows that a crime has

been committed (/.e., an unauthorized alien has_ been

employed) and keeps quiet about it, he may also be

committing one or more felonies. See 18 U.S.C. § 4

(prohibiting “misprision of a felony’); see also 8 U.S.C.

§ 1324(a)(1)(A)(iil) (making it a crime to shield unauthorized

aliens from detection); United States v. Cantu, 557 F.2d

1173, 1180 (Sth Cir. 1977) (affirming prosecution of

employer under 8 U.S.C. § 1324(a)(1)(A)(iii)).

4. Hoffman Plastics Compound, Inc. v. NLRB does not

stand for the proposition that unauthorized aliens are not

entitled to Backpay, Reinstatement or Frontpay under Title

Vil?

In Hoffman Plastics, the U.S. Supreme Court held that

unauthorized aliens who sued their employer for engaging in

unfair labor practices in violation of the National Labor

Relations Act, 49 Stat. 449, as amended, 29 U.S.C. §§ 151 et

'° On March 1, 2003, the INS ceased to exist and its functions

were transferred to the Department of Homeland Security. The U.S.

Immigration and Customs Enforcement has assumed many of the

INS’s enforcement functions. Hernandez vy. Ashcroft, 345 F.3d

824, 828 & n.2 (9th Cir. 2003).

'' As NIBCO is all too likely to learn through its own

investigation, allowed by the magistrate judge’s order.

45a

seq. (“NLRA” or the “Wagner Act” of 1935) were not

entitled to an award of backpay because of their immigration

Status as unauthorized aliens.

In so holding, the court reasoned that federal immigration

policy, as codified by the Immigration Reform and Control

Act of 1986 (“IRCA”), foreclosed such an award. In

particular, under IRCA, it is a crime for an unauthorized alien

to tender fraudulent documents in order to procure work. 8

U.S.C. § 1324c(a). Moreover, if an employer unknowingly

hires an unauthorized alien, the employer must discharge the

worker upon discovery of the worker’s unauthorized status. 8

U.S.C. § 1324a(a)(2). Employers who know of the worker’s

unauthorized status and fail to discharge such worker are

subject to civil fines and may be subject to criminal

prosecution. 8 U.S.C. § 1324a(e)(4)(A). It is no defense to

IRCA that at the original hiring, the employee presented an

apparently valid Social Security card, if the employer now

knows he is an unauthorized alien. The court in Hoffman

reasoned that it could not award backpay to unauthorized

aliens without contravening IRCA. The court concluded that:

allowing the Board to award backpay to illegal

aliens would unduly trench upon explicit statutory

prohibitions critical to federal immigration policy,

as expressed in IRCA. It would encourage the

successful evasion of apprehension by immigration

authorities, condene prior violations of the

immigration laws, and encourage future violations.

Hoffman, 535 U.S. at 151-52.

In the instant case, in concluding that the court can grant

to unauthorized aliens suing under Title VII the remedies of

backpay, frontpay and reinstatement, the panel argues that

Hoffman does not preclude such an award. In so holding, the

panel would limit the Hoffman decision to preclude an award

of backpay to unauthorized aliens suing under the NLRA and

not under Title VII. See Rivera, 364 F.3d at 1064-66. The

panel wrote:

46a

the precise question before the Court [in Hoffman]

was whether the NLRB had the authority under the

NLRA to award backpay to undocumented workers

notwithstanding the prohibition on hiring such

workers in the Immigration Reform and Control Act

of 1986 (“IRCA”). Answering that question in the

negative, the majority also strongly suggested that

the policy goals of IRCA outweigh those of the

NLRA, and therefore that IRCA would preclude

any backpay award to illegal immigrants under the

NLRA.

* * *

We seriously doubt that Hoffman is as broadly

applicable as NIBCO contends, and specifically

believe it unlikely that it applies in Title VII cases.

Rivera, 364 F.3d at 1066-67.

The panel reaches this conclusion by arguing that the

significant differences between Title VII and the NLRA

compel a conclusion that “Hoffman does not resolve the

question whether federal courts may award backpay to

undocumented workers who have been discharged in

violation of Title VII.”'? Rivera, 364 F.3d at 1058. The -panel

' Indeed, the administrative agency charged with enforcing

Title VII rescinded its 1999 enforcement guidance entitled

“Remedies Available to Undocumented Workers Under Federal

Employment Discrimination Laws” after the Hoffman decision was

decided. See http://www.eeoc.gov/policy/docs/undoc-recind.html

visited June 15, 2004. Moreover, the EEOC has cited Hoffman for

the proposition that “relief may be limited if an individual subjected

to discrimination does not have appropriate work authorization.”

See http://www.eeoc.gov/policy/docs/ national-origin.html visited

June 15, 2004. The EEOC’s determination is entitled to deference

under Chevron USA Inc. v. Natural Resources Defense Council,

467 U.S. 837 (1984). See EEOC v. Dinuba Medical Clinic, 222

F.3d 580, 589 (9th Cir. 2000) (according deference to the EEOC’s

47a

argues that the NLRA has a narrower purpose than Title VII.

In support of this contention, the panel first argues that the

NLRA’s purpose is to grant remedies for unfair labor

practices by administrative means, not court action.

By contrast, Title VII actions are enforced primarily by

means of private actions.'* Second, the panel argues that Title

VII provides for broader remedies than does the NLRA.

Specifically, the NLRA provides for backpay, frontpay and

reinstatement, while Title VII allows for compensatory and

punitive damages as well as backpay, frontpay and

reinstatement. Third, the NLRB is only empowered to award

backpay when it has found that an employer has engaged in

an unfair labor practice. Under Title VII, a federal court

determines whether a civil right violation merits an award of

backpay. In the panel’s view, “this difference is significant”

in light of the reasoning in Hoffman that “given the strong

policies underlying IRCA and the Board’s limited power to

construe statutes outside of its authority, the NLRB’s

construction of the NLRA was impermissible.” Rivera, 364

F.3d at 1068. That is, the Hoffman decision was predicated

upon the fact that the NLRB had limited authority and

therefore could not weigh competing federal interests,

whereas the federal courts do in fact have such authority

when construing Title VII. Accordingly, the panel proceeds to

weigh the “competing federal interests” at issue here and

concludes that “the overriding national policy against

discrimination would seem likely to outweigh any bar against

the payment of back wages to unlawful immigrants in Title

VII cases.” Rivera, 364 F.3d at 1069.

This is not logical. First, the district court in Rivera was

not called upon to weigh the “policy considerations” of Title

Enforcement Guidance discussing the compensatory and punitive

damages available under Title VII).

‘> But not always. Administrative remedies exist and are used

both under Title VII (see 42 U.S.C. § 2000e-5) and California’s

FEHA (see CAL. GOV’T CODE §§ 12963).

48a

VII versus the “policy considerations” of the IRCA,

something which the panel opinion determines the NLRB was

not “expert” enough to do. The only issue for the district court

in Rivera was to determine what damage remedies Title VII

provides.'* Under Title VII, a prevailing party may obtain

backpay, reinstatement (or frontpay for those electing not to

be reinstated), as well as compensatory and punitive damages.

See Pollard v. E.l. du Pont de Nemours & Co., 532 U.S. 843,

851-52 (2001) (noting that remedies available under Title VII

are backpay, frontpay, reinstatement, compensatory and

punitive damages); Faragher v. City of Boca Raton, 524 U.S.

775, 804 (1998) (same)."°

Under Title VII, backpay and frontpay or reinstatement

are provided as remedies if and only if the alleged

discrimination caused the plaintiff damage. Congress has

'* The panel is correct that the Ninth Circuit has recognized

that unauthorized aliens are entitled to the protections of Title VII.

See EEOC vy. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989).

However, the question at issue is not whether Title VII applies to

unauthorized aliens (it does), but which damage remedies are

available — and which are not available — to unauthorized aliens

under the statute.

'S Similarly, a plaintiff suing under California FEHA, CAL.

GOV’T CODE §§ 12940 et seq., (as do plaintiffs here, asserting

pendant jurisdiction) may recover backpay, frontpay, reinstatement

(see § 12790) in addition to compensatory and punitive damages

(see e.g., Martinez v. Kirk Xpedx, 2003 U.S. Dist. LEXIS 12657,

2003 WL 21715875, *1 (N.D. Cal. 2003) (successful plaintiff may

recover compensatory and punitive damages under FEHA)). CAL.

GOV’T CODE § 12790 provides, in pertinent part, that if the

commission finds that defendant has engaged in an unlawful

practice, plaintiff may be entitled to “hiring, reinstatement, or

upgrading [], with or without backpay . . . the payment of actual

damages as may be available in civil actions under this part. Actual

damages include, but are not limited to, damages for emotional

injuries if the accusation or amended accusation prays for those

damages.”

49a

already determined that vindication of the employee’s civil

rights require backpay and frontpay or reinstatement. See 42

U.S.C. § 2000e-5(g); Albemarle Paper Co. v. Moody, 422

U.S. 405, 450 (1975) (noting that Congress gave courts ability

to award backpay in title VII cases to “eliminate, as far as

possible, the last vestiges” of discrimination).

However, courts will award a damage remedy under Title

VII only where the plaintiff has proven he actually suffered

the claimed loss. Indeed, since there is a statutory duty to

mitigate damages, courts have held that a precondition for a

claim for backpay and reinstatement or frontpay under Title

VII is that the plaintiff be in all manner ready, willing and

legally capable of performing alternate work at the

commencement and through the backpay period. See

Ackerman v. Board of Educ., 387 F. Supp. 76, 81 (S.D.N.Y.

1974) (“in order to establish eligibility for an award of

backpay under equal opportunities law, a claimant must prove

as a first step . . . that he was ready, willing and able to

work”; plaintiff suing under Title VII not entitled to backpay

where he could not show that he applied for teaching position

at a number of public schools). See also U.S. v. Wood Wire &

Metal Lathers Int'l. Union, 328 F. Supp. 429, 443 (S.D.N.Y.

1971) (plaintiffs entitled to backpay where they could prove

that they mitigated damages by working on alternate jobs).

Moreover, physical inability to work bars a backpay claim.

See EEOC v. Indep. Stave, 754 F. Supp. 713, 721 (E.D. Mo.

1991) (holding that plaintiff could not recover backpay where

physical injury prevented her from working at alternate job

for purposes of mitigating damages); Martin v. Dep't of Air

Force, 184 F.3d 1366, 1367-68 (Fed. Cir. 1999) (plaintiff not

entitled to backpay for period of time he was physically

unable do physical tasks required by his work). Similarly,

voluntary removal from the labor market removes backpay

claim. See Miller v. Marsh, 766 F.2d 490 (11th Cir. 1985)

(plaintiff who removed herself from labor market by

attending law school not entitled to backpay); Stevens v.

Tennessee Valley Authority, 805 F.2d 1036, 1986 WL 18134,

——— '

50a

*6 (6th Cir. 1986) (plaintiff not entitled to backpay where he

was unable to work due to National Guard duties).

So it is here. An unauthorized alien cannot show that she

is “ready, willing and able” to perform the work, during the

time she was off work, because it would be in violation of the

IRCA — i.e., illegal — for her to do so.'° It is axiomatic that a

contract with an illegal purpose bars enforcement of such

contract; no damages are incurred by its breach. See Witkin,

Summary of Cal. Law (9th ed. 1987) Contracts, § 441; Adler

v. Federal Republic of Nigeria, 219 F.3d 869, 880 (9th Cir.

2000) (contract to launder money fraudulently was illegal and

unenforceable; “hornbook law is that a contract is illegal if it

[] has an illegal purpose’’); Hedla v. McCool, 476 F.2d 1223,

1227 (9th Cir. 1973) (contract for Seattle architects to design

a building to be constructed in Alaska not enforceable where

architects were not licensed in Alaska).

Moreover, the panel’s conclusion that Hoffman stands for

the proposition that backpay, frontpay and reinstatement are

not available to plaintiffs suing under the NLRA alone

because the NLRA is narrower than Title VII is incorrect.

First, the panel correctly notes that the NLRA is enforced by

the NLRB, while Title VII is primarily enforced by private

causes of action. However, the question here is not who can

vindicate the rights, but what damages can be recovered. As

to backpay and frontpay, both the NLRA and Title VII

'© Similarly, the backpay or frontpay or reinstatement remedy

is only available where the damages were caused by the

discriminatory conduct. If the employment is terminated because of

a good faith reason, e.g., where the plaintiff is incompetent; the

plaintiff is disabled and cannot be made productive by “reasonable

accommodations,” the fact that he was a/so terminated because of

discrimination dees not entitle him to backpay or frontpay or

reinstatement. Brady v. Thurston Motor Lines, 753 F.2d 1269,

1278-79 (4th Cir. 1985) (employer was entitled to reduce backpay

for periods when the employees were off work because of separate

violations of work rules which caused termination).

S5la

provide them as remedies. The two enactments are not

broader or narrower as to this remedy. They are similar.

Second, the panel argues that Title VII is broader than the

NLRA because compensatory and punitive damages are

recoverable under Title VII but are not under the NLRA. This

argument ignores the explicit congressional policy prohibiting

payment of wage loss damages to anyone who lacks the

immigration status or nationality to have a legal right to earn

the wages claimed to have been lost. The question is not

whether unauthorized aliens are entitled to compensatory and

punitive damages — they are — but what is the scope of the

compensatory darnages available under the two statutes.

Courts have recognized that the remedial language of the two

statutes is virtually identical. See, e.g., De La Rosa v. .

Northern Harvest Furniture, 210 F.R.D. 237, 238 (C.D. Ill.

2002) (“the remedial language of the National Labor

Relations Act ic very similar to Title VII’s language’’); Local

28 of Sheet Metal Workers’ Int'l Ass’n v. EEOC, 478 U.S.

421, 447, 92 L. Ed. 2d 344, 106 S. Ct. 3019 (1986) (noting

that the enforcement provisions of Title VII were “modeled

after [the NLRA]’).

The NLRA provides for the following remedies:

If upon the preponderance of the testimony taken

the Board shall be of the opinion that any person

named in the complaint has engaged in or is

engaging in any such unfair labor practice, then the

Board shall state its findings of fact and shall issue

and cause to be served on such person an order

requiring such person to cease and desist from such

unfair labor practice, and to take such affirmative

action including reinstatement of employees with or

without backpay, as will effectuate the policies of

this subchapter.

29 U.S.C. § 169(c)(emphasis added).

Title VII provides for the following remedies:

S2a

If the court finds that the respondent has

intentionally engaged in or is intentionally engaging

in an unlawful employment practice charged in the

complaint, the court may enjoin the respondent

from engaging in such unlawful employment

practice, and order such affirmative action as may

be appropriate, which may include, but is not limited

to, reinstatement or hiring of employees, with or

without backpay (payable by the employer,

employment agency, or labor organization, as the

case may be, responsible for the unlawful

employment practice), or any other equitable relief

as the court deems appropriate.

42 U.S.C. § 2000e-5(g) (emphasis added).

Third, the panel notes that the NLRA is enforced by the

NLRB, which is an administrative body of limited authority

and Title VII is enforced by the federal courts. The panel

points to language in Hoffman that the NLRB has the

“discretion to select and fashion remedies for violations of the

NLRA” and that such discretion, “though generally broad, is

not unlimited” and concludes that it was only because of the

NLRB’s limited authority that it could not weigh the federal

policy of abolishing unfair labor practices against U.S.

immigration policy. Rivera, 364 F.3d at 1068 (citing

Hoffman, 535 U.S. at 142-43). Please note, contrary to what

the panel opinion argues, that it is not the NLRB that weighed

the NLRA versus the IRCA and found the latter prohibited

wage loss claims under the former. It was a federal court, just

like the one the panel opinion says should do the weighing of

“conflicting” policies. In that case, the federal court was the

Supreme Court of the United States.

The panel then concludes that the district court in Rivera

has the authority to make such a determination, opining that

“the overriding national policy against discrimination would

seem likely to outweigh any bar against the payment of back

wages to unlawful immigrants in Title VII cases.” Rivera,

53a

364 F.3d at 1069. This argument is profoundly incorrect. The

Hoffman decision does not rest upon such a slender reed.

Rather, in holding that unauthorized aliens are not entitled to

backpay under the NLRA, the Supreme Court reasoned that

“allowing the Board to award backpay to illegal aliens would

unduly trench upon explicit statutory prohibitions critical to

federal immigration policy, as expressed in IRCA.” Hoffman,

535 U.S. at 151-52. The same rationale applies here: allowing

federal courts to award backpay to illegal aliens would also

“unduly trench upon” federal immigration policy as codified

in the IRCA. /d.

Finally, the panel cites no authority whatsoever for the

proposition that the national policy against discrimination

outweighs immigration policy, nor can it. Such an inquiry is

inherently suspect. It is the province of Congress, not the

courts, to weigh one policy against another, while it is

“emphatically the province and duty of the judicial

department to say what the law is.” Marbury v. Madison, 5

U.S. 137, 1 Cranch 137, 177, 2 L. Ed. 60 (1803). It is dubious

that Congress intended that the societal value of civil rights

cases to be so important that the court should allow

unauthorized aliens to violate the Immigration law. Such a

proposition is utterly without antecedent. There is nothing in

either the Hoffman opinion or caselaw to suggest that the

policy concerns underlying Title VII trump the policy

considerations of the IRCA. The “policy considerations” of

the NLRA have been national policy since 1935, 30 years

longer than those of the 1986 Immigration Reform and

Control Act. On the limited issue of special economic

damages for claimed lost wages, why can’t that same 1986

Immigration Reform and Control Act trump the 1964 Civil

Rights Act the way it did the 1935 Wagner Act?

More fundamentally, why should a district court have

any greater discretion to fashion remedies for civil rights

violations which “trench upon federal statutes and policies”

unrelated to Title VII (such as prohibitions on unauthorized

aliens working in the U.S.) than does the NLRB? The district

54a

court can still award remedies to vindicate Title VII rights

such as (1) emotional distress damages, (2) punitive damages,

and (3) attorneys’ fees, all without “trenching upon” the

IRCA policy of not allowing unauthorized aliens to work or

to recover wage loss damages for work time loss in jobs to

which they had no legal right.

By allowing the plaintiffs to refuse to answer questions,

the answers to which might reduce their monetary recovery

and make them vulnerable to removal, the panel accepts a

gauzy and warm rationale for an evasion meant to impede the

search for the truth. Such misguided compassion will surely

corrupt the administration of our civil rights statutes, and

threaten to bring them into public disrepute.

For these reasons, I respectfully dissent.

55a

MARTHA RIVERA, et al., Plaintiffs,

Vv.

NIBCO, INC., et al., Defendants.

CV F 99-6443 AWI SMS

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF CALIFORNIA

December 21, 2001, Decided

December 21, 2001, Filed

COUNSEL:

For MARTHA RIVERA, MAO HER, ALICIA

ALVAREZ, EVA ARRIOLA, PEUANG BOUNNHONG,

ROSA CEJA, CHHOM CHAN, BEE LEE, PAULA

MARTINEZ, MARIA DOMITILIA MEDINA, MAI

MEEMOUA, MARGARITA MENDOZA, BAO NHIA

MOUA, ISIDRA MURILLO, MARIA NAVARRO, VATH

RATTANATAY, OFELIA RIVERA, SARA _ RIVERA,

MARIA - RODRIGUEZ, MARIA - RUIZ, MARIA

VALDIVIA, SY VANG, YOUA XIONG, SEE - YANG,

XHUE YANG, plaintiffs: Alan Lawrence Schlosser,

American Civil Liberties Union, Northern California, San

Francisco, CA. William J Smith, Richtel and Smith, Fresno,

CA. Christopher Vincent Ho, Donya C_ Fernandez,

Employment Law Center, Legal Aid Society of San

Francisco, San Francisco, CA. Marielena Hincapie, National

Immigration Law Center, Oakland, CA.

For NIBCO INC, RM WADE CO, defendants: Howard

Alan Sagaser, Sagaser Franson and Jones, Fresno, CA.

Before: ANTHONY W. ISHII, UNITED STATES

DISTRICT JUDGE.

56a

ORDER RE MOTION FOR RECONSIDERATION

On June 18, 2001, the Magistrate Judge entered an Order

Granting Plaintiff s Motion for Protective Order. On June 26,

2001, Defendants filed a motion for reconsideration of the

Magistrate Judge’s ruling, pursuant to Rule 72(a), Federal

Rules of Civil Procedure, and Local Rule 72-303. Plaintiffs

oppose the motion for reconsideration. Oral argument was

heard on the motion on October 1, 2001, after which the court

requested further briefing on pertinent sections of the

Immigration Reform and Control Act. The briefing was

received from the parties and further oral argument was heard

on December 10, 2001.

Rule 72(a), Federal Rules of Civil Procedure, provides as

follows:

(a) Nondispositive Matters. A magistrate judge to

_ whom a pretrial matter not dispositive of a claim or

defense of a party is referred to hen and determine

shall promptly conduct such proceedings as are

required and when appropriate enter into the record

a written order setting forth the disposition of the

matter. Within 10 days after being served with a

copy of the magistrate judge’s order, a party may

serve and file objections to the order; a party may

not thereafter assign as error a defect in the

magistrate judge’s order to which objection was not

timely made. The district judge to whom the case is

assigned shall consider such objections and shali

modify or set aside any portion of the magistrate

judge’s order found to be clearly erroneous or

contrary to law.

Local Rule 72-303 provides in part as follows:

The standard that the assigned Judge shall use in all

such requests is the “clearly erroneous or contrary

to law” standard set forth in 28 U.S.C. §

636(b)(1)(A). See Fed.R.Civ.P. 72(a).

57a

Defendants first contend that the Magistrate Judge erred

in preventing them from determining Plaintiffs’ places of

birth. See Espinoza v. Farah Mrg. Co., 414 U.S. 86, 88

(1973) (“the term ‘national origin’ on its face refers to the

country where a person was born, or, more broadly, the

country from which his or her ancestors came”). Defendants

claim that, “the Magistrate Judge basically has ruled that

because the Plaintiffs have responded to interrogatories

stating their ancestry, the issue as to their national origin is no

longer relevant.” Request for Reconsideration, 5:4-7.

Defendants argue that this ruling is clearly erroneous and

contrary to law.

Defendants misstate the Magistrate Judge’s ruling.

Rather than ruling that the issue as to Plaintiffs’ national

origin is no longer relevant, the Magistrate Judge ruled that

because each Plaintiff has identified his or her national origin

through responses to interrogatories and because there is no

dispute that each Plaintiff is a member of a protected class,

further questions as to where each Plaintiff was born have no

relevance to this action. The court finds that this ruling is

neither clearly erroneous nor contrary to law.

Second, Defendants contend that the Magistrate Judge

erred in barring discovery concreting Plaintiffs’ work status,

presenting several separate arguments. The court notes at the

outset that neither party has cited the court to controlling

Ninth Circuit authority on this issue.

Initially, Dependents argue that the Magistrate Judge in

adopting the reasoning of Massey v. Trump’s Castle, 828 F.

Supp. 314, 321 (D.N.J. 1993), adopted reasoning that was

rejected in McKennon v. Nashville Banner Publishing Co.,

513 U.S. 352 (1995). Defendants, however, ignore the

discussion of McKennon’s application to Massey found at

pages 9 through 10 of the Magistrate Judge’s Order. The

court finds Defendants’ argument to be meritless.

Next, Defendants argue that the Magistrate Judge was

mistaken in stating that, “the defendant employer is not

58a

placed in an adverse position because but for the lawsuit the

employer never would have had reason to pursue such an

inquiry.” This statement obviously refers to Defendants’

position as to determining Plaintiff's employment status,

which is now no worse than it was before this lawsuit was

filed. It does not refer, as Defendants imply, to Defendants’

present position in litigating this lawsuit as compared with

their position before the Magistrate Judge ruled on the

discovery dispute.

Further, Defendants argue that the Magistrate Judge

mistakenly held that Defendants should have engaged in an

independent investigation regarding Plaintiffs’ immigration

status at the time of hiring, not post-discrimination.

Defendants claim that the Immigration Reform and Control

Act (“IRCA”) has to such language and that the Magistrate

Judge attempts to read into the IRCA a requirement that does

not exist. The court finds that Defendants misconstrue the

Magistrate Judge’s statement, which in no way refers to the

IRCA.

Furthermore, Defendants argue that the Magistrate Judge

was mistaken in basing her decision in part “on the partial

immunity granted to undocumented employees regarding

their standing to bring a Title VII claims as granted by

Hacienda Hotel and Tortilleria,” claiming that neither case

extends any form of discovery immunity to a_ plaintiff

claiming discrimination. The court again finds that

Defendants misconstrue the Magistrate Judge’s statement,

which does not refer to immunity from discovery, but clearly

refers to standing granted to undocumented employees under

Title VII.

Finally, Defendants take issue with the Magistrate

Judge’s reference to the possible serious ramifications to

Plaintiffs, including possible deportation and _ criminal

prosecution, of allowing defendants their requested discovery.

The court finds that the Magistrate Judge correctly considered

59a -

the ramifications to all parties of her resolution of this

discovery dispute.

The court has considered the further briefing provided by

the parties and finds it informative, but not dispositive. Based

on all of the above, the court concludes that Defendants have

not demonstrated that the Magistrate Judge’s ruling on

discovery concerning Plaintiffs’ work status is either clearly

erroneous or contrary to Law.

Accordingly, Defendants’ motion for reconsideration is

HEREBY DENIED.

IT IS SO ORDERED

DATED: 12-21-01

ANTHONY W. ISHII

UNITED STATES DISTRICT JUDGE

60a

MARTHA RIVERA, et al., Plaintiffs,

v.

NIBCO, INC.., et al., Defendants.

CV-F 99-6443 AWI/SMS

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF CALIFORNIA

June 19, 2001, Decided

June 18, 2001, Filed

COUNSEL: For MARTHA RIVERA, MAO HER, ALICIA

ALVAREZ, EVA ARRIOLA, PEUANG BOUNNHONG,

ROSA CEJA, CHHOM CHAN, BEE LEE, PAULA

MARTINEZ, MARIA DOMITILIA MEDINA, MAI

MEEMOUA, MARGARITA MENDOZA, BAO NHIA

MOUA, ISIDRA MURILLO, MARIA NAVARRO, VATH

RATTANATAY, OFELIA RIVERA, SARA RIVERA,

MARIA - RODRIGUEZ, MARIA - RUIZ, MARIA

VALDIVIA, SY VANG, YOUA XIONG, SEE - YANG,

XHUE YANG, plaintiffs: Edward Chen, NOT ED-CA

ADMITTED, American Civil Liberties Union, Northern

California, San Francisco, CA.

For MARTHA RIVERA, MAO HER, ALICIA ALVAREZ,

EVA ARRIOLA, PEUANG BOUNNHONG, ROSA CEJA,

CHHOM CHAN, BEE LEE, PAULA MARTINEZ, MARIA

DOMITILIA MEDINA, MAI MEEMOUA, MARGARITA

MENDOZA, BAO NHIA MOUA, ISIDRA MURILLO,

MARIA NAVARRO, VATH RATTANATAY, OFELIA

RIVERA, SARA RIVERA, MARIA - RODRIGUEZ,

MARIA - RUIZ, MARIA VALDIVIA, SY VANG, YOUA

XIONG, SEE - YANG, XHUE YANG, plaintiffs: William J

Smith, Richtel and Smith, Fresno, CA.

6la

For MARTHA RIVERA, MAO HER, ALICIA ALVAREZ,

EVA ARRIOLA, PEUANG BOUNNHONG, ROSA CEJA,

CHHOM CHAN, BEE LEE, PAULA MARTINEZ, MARIA

DOMITILIA MEDINA, MAI MEEMOUA, MARGARITA

MENDOZA, BAO NHIA MOUA, ISIDRA MURILLO,

MARIA NAVARRO, VATH RATTANATAY, OFELIA

RIVERA, SARA RIVERA, MARIA - RODRIGUEZ,

MARIA - RUIZ, MARIA VALDIVIA, SY VANG, YOUA

XIONG, SEE - YANG, XHUE YANG, plaintiffs:

Christopher Vincent Ho, Donya C Fernandez, Employment

Law Center, Legal Aid Society of San Francisco, San

Francisco, CA.

For MARTHA RIVERA, MAO HER, ALICIA ALVAREZ,

EVA ARRIOLA, PEUANG BOUNNHONG, ROSA CEJA,

CHHOM CHAN, BEE LEE, PAULA MARTINEZ, MARIA

DOMITILIA MEDINA, MAI MEEMOUA, MARGARITA

MENDOZA, BAO NHIA MOUA, ISIDRA MURILLO,

MARIA NAVARRO, VATH RATTANATAY, OFELIA

RIVERA, SARA RIVERA, MARIA - RODRIGUEZ,

MARIA - RUIZ, MARIA VALDIVIA, SY VANG, YOUA

XIONG, SEE - YANG, XHUE YANG, plaintiffs: Marielena

Hincapie, National Immigration Law Center, Oakland, CA.

For NIBCO INC, RM WADE CO, defendants: Howard Alan

Sagaser, Sagaser Franson and Jones, Fresno, CA.

Before: SANDRA M. SNYDER, United States Magistrate

Judge.

62a

ORDER GRANTING PLAINTIFF’S MOTION FOR

PROTECTIVE ORDER

(Doc. No. 33)

The above motion came on regularly for hearing on

Friday, June 8, 2001, at Courtroom 4, before the Hon. Sandra

M. Snyder, United States Magistrate Judge. Christopher Ho,

Esq., and Donya Fernandez, Esq., of the Employment Law

Center, appeared on behalf of plaintiffs Martha Rivera, et al.;

William Hahesy, Esq., and Brian Enos, Esq., of Sagaser,

Franson & Jones, appeared on behalf of defendants NIBCO,

Inc., and R.M. Wade & Co. (NIBCO).

FACTS AND PROCEDURAL HISTORY:

Plaintiffs are “limited-English-proficient production

workers who have been terminated from or otherwise

disadvantaged in the terms and conditions of employment at

[NIBCO’s] facility . . . .” First Amended Complaint 7 34.

Plaintiffs initiated this action on Oct. 1, 1999, and filed their

First Amended Complaint on Feb. 24, 2000. Plaintiffs allege

NIBCO hired plaintiffs knowing of their lack of English

proficiency. /d. | 42. Plaintiffs’ job descriptions did not

require English proficiency, and plaintiffs performed their

respective jobs without incident for years. Id. ]§ 42 and 47. In

1997 or 1998, NIBCO required plaintiffs to take an

examination given in the English language. /d. ] 43. Plaintiffs

allege they performed poorly on the examination, and their

poor performance on the examination initially led to adverse

consequences, i.e., being required to take English as a second

language classes, undesirable job assignments, et al., and

thereafter terminations. Jd. ¥§ 50-52. The Court emphasizes

that at this stage of the litigation the above are allegations

only.

NIBCO deposed plaintiff Rivera on May 14, 2001.

Sagaser Decl. Exh. D. At deposition, counsel for Rivera

objected to certain questions asked by counsel for NIBCO

regarding where Rivera was married and where Rivera was

born, and directed Rivera not to answer such questions. /d.

63a

18:22-24, 19:5-8, 21:7-12, 21:14-16, et al. This matter was

not resolved, even after the parties sought assistance from

Magistrate Judge Dennis Beck. /d. 27:14 et seq. Plaintiffs’

motion for protective order followed.

Plaintiffs filed their motion for protective order on May

21, 2001. NIBCO filed opposition on May 29, 2001. Plaintiffs

filed a reply on June 4, 2001, and an errata reply on June 5,

2001.

DISCUSSION:

“Upon motion by a person responding to a discovery

request, and for good cause shown, the court is authorized to

make any order which justice requires to protect the person

from annoyance, embarrassment, oppression, undue burden or

expense.” Schwarzer, Tashima & Wagstaffe, Fed. Civ. Proc.

Before Triai J 11:84 (2001). Factors for determining the

existence of good cause include whether the information is

sought for a legitimate purpose, whether disclosure will

violate any privacy interest, whether disclosure will cause a

party embarrassment, whether disclosure is important to

public health and safety, whether sharing of information

among litigants will promote fairness and efficiency in the

litigation, and whether the case involves issues of public

importance. Jd. § 11:89.1. The court must balance the

interests in allowing discovery against the relative burdens to

the parties. Jd. | 11:90. At issue here are two categories of

questions — background questions such as where plaintiffs

were born and married, and questions related to the after-

acquired-evidence doctrine such as whether or not plaintiffs

may legally work in the United States.

1. Background Questions

A. Place of Birth

NIBCO seeks to ask each plaintiff where s/he was born.

Although each plaintiff has responded through interrogatories

identifying their national origin (i.e., of “Mexican Ancestry”

for plaintiff Rivera), NIBCO contends where each plaintiff

was born is still nevertheless relevant, citing to Espinoza v.

64a

Farah Mfg. Co., 414 U.S. 86, 88 (1973): “‘national origin’ in

Title VII refers to ‘the country where a person was born, or

more broadly, the country from which his or her ancestors

came.’ NIBCO further refers to the fact that this question is

set forth as a form interrogatory by the Judicial Council of

California.

Plaintiffs contend such questions bearing upon plaintiffs’

immigration status have a chilling effect upon plaintiffs and

similarly situated individuals pursuing their workplace rights.

This Court agrees. Insofar as there appears to be no dispute

that each plaintiff is a member of a protected class, and

further questions regarding where each plaintiff was born has

no further relevance to this action, plaintiffs’ request that

NIBCO be precluded from asking such questions is hereby

GRANTED. See Botello v. County of Alameda, 1995 U.S.

Dist. LEXIS 19532, 119 WL 779115, *4 (N.D. Cal. 1995).

B. Place of Marriage

NIBCO seeks to ask plaintiffs where they were married,

citing the marital privilege and issues of credibility as to its

possible relevance. See Haddad v. Lockheed, 720 F.2d 1454

(9th Cir. 1983) (marital privilege sought in discrimination

case). Plaintiffs concede this question, along with each

plaintiff's educational background, current and past

employment, damages, date of birth, other names used, and

criminal convictions may be relevant, and accordingly request

such matters be subject to a “limitation on its disclosure to

anyone other than the parties, their attorneys, and agents

(including experts).”” P&A 9:18-21 and P&A Exh. B. Insofar

as plaintiffs’ proposed limitation as to these topics appears to

satisfy NIBCO’s need and use for such information, and

NIBCO has not objected to this proposal in their opposition,

plaintiffs’ motion is GRANTED as to these items.

2. Employment Status

NIBCO seeks to inquire into plaintiffs’ respective past

and present employment status. NIBCO concedes, only for

purposes of this motion, that Title VII applies to

nied OF nd:

65a

undocumented aliens. NIBCO Oppo. P&A 12 n.17; see also

EEOC vy. Hacienda Hotel, 881 F.2d 1504, 1517 n.10 (9th Cir.

1989) (court found persuasive, without ruling on issue,

EEOC’s argument that Title VII applies to undocumented

aliens), overruled on other grounds, Burrell v. Star Nursery,

Inc., 170 F.3d 951 (9th Cir. 1999), EEOC v. Tortilleria- “La

Mejor” , 758 F. Supp. 585 (E.D. Cal. 1991) (Title VII extends

protection to undocumented workers), and Murillo v. Rite

Stuff Foods, Inc., 65 Cal. App. 4th 833, 849 (1998) (FEHA

applies to undocumented aliens). NIBCO seeks such

information for purposes of the “after acquired evidence”

doctrine, which could limit a plaintiff’s damages and preclude

reinstatement.’ Plaintiffs, in turn, concede the application of

this doctrine, but contend NIBCO must obtain such evidence

through other means rather than from plaintiffs directly

through discovery.

Other courts have similarly struggled with the application

of the after acquired evidence doctrine. See, i.e., Mardell v.

Harleysville Life Ins., 31 F.3d 1221, 1226-28 (3d Cir. 1994)

(discussion of different treatments by different circuits),

vacated, 514 U.S. 1034 (1995), on remand, 65 F.3d 1072 (per

curiam). In most such cases, however, the defendant-

employer’s method of discovering such evidence was not in

dispute. See Murillo, 65 C.A.4th at 839 (plaintiff volunteered

at deposition she was undocumented); cf. Tortilleria, 758 F.

' NIBCO cites to 8 U.S.C. § 1324a in support of their position

regarding reinstatement and in support of counsel’s position that he

has an obligation to protect his client from criminal exposure.

Oppo. P&A 3:17-23, 3:26-27, 15:2-5; and 15:21-25. With respect

to the latter, section 1324a only subjects an employer to criminal

exposure if the employer knowingly hires an alien who is

unauthorized to work in the United States. As noted by plaintiffs,

§ 1324b(a)(6) limits an employer from requesting further

documents which establish employability. Also, § 1324a(b) says

nothing about allowing an employer to investigate an employee’s

immigration status through the civil discovery process.

66a

Supp. at 586 (plaintiff refused to respond to discovery

regarding her immigration status for purposes of whether or

not Title VII applied to undocumented workers).

At tension here are the possible and alleged misdeeds by

both parties. Plaintiffs argue, which NIBCO and this Court

accept for purposes of this motion, that Title VII nevertheless

offers protection to employees without such documentation.

As NIBCO points out, it is illegal for an individual to work

without the proper documentation. Plaintiffs and the Court

acknowledge that such evidence is relevant.

In reaching a resolution to this issue, the Court compares

an employee’s fraud during the application for employment

(application fraud) with the employee’s fraud during

employment (resume fraud). With regard to the former, of_

which the instant case is allegedly an example, the applicant

is qualified to do the job, but, had the employer known of the

fraud, the applicant would not have been hired. With regard to

the latter, the applicant was not qualified to do the job but,

due to the applicant’s fraud, was nevertheless hired.

Mardell, a pre-McKennon case (McKennon v. Nashville

Banner Publishing Co., 513 U.S. 352 (1995)), addressed the

fairness of allowing an employer to find and to use after

acquired evidence for purposes of precluding or capping the

employee’s damages. Mardell noted that allowing an

employer to escape liability altogether after discovering a

legitimate reason for terminating that employee would be

tantamount to awarding the employer for engaging in the

discriminatory wrongdoing. 31 F.3d at 1229-30. Mardell

found such a result was ruled out by the language of Title VII,

which granted standing to “any individual” rather than “any

qualified individual”. 31 F.3d at 1231. However, like

McKennon, Mardell held: “The plaintiff's deceit or

misconduct toward the employer is most appropriately

considered in the remedies stage ... .” 31 F.3d at 1233. In

comparison to McKennon, Mardell was quicker to realize the

chilling effect upon potential discrimination claims that an

67a

employer’s “thorough inquiry into the details of a plaintiff's

pre- and post-hiring conduct” would bring. 31 F.3d at 1236.

Although Mardell did not discuss the manner in which such

evidence was acquired, Mardell did voice concerns that such

evidence would have the stain of retaliation. 31 F.3d at 1238

n.31.

In Massey v. Trump's Castile, 828 F. Supp. 314, 321

(D.N.J. 1993), the court noted the Eleventh Circuit’s analysis

that after acquired evidence penalizes the wronged employee

twice because such “evidence would not have _ been

discovered had the employer not discriminated against the

employee [to begin with].” 828 F. Supp. at 321. Massey

allowed back-pay damages, in an after acquired evidence

case, through the time of judgment rather than the time of

discovery because “the fact that the misconduct was

discovered only as a byproduct of the employer’s illegal

actions cannot be minimized or overlooked.” 828 F. Supp. at

323-24. However, if the employer could “prove that the

information would have inevitably come to light independent

of the employer’s discriminatory conduct”, Massey would

then allow damages only through the date of inevitable

discovery. 828 F. Supp. at 324 (emphasis added).

This Court adopts the reasoning of Massey for purposes

of discovery, i.e., defendants may engage in independent

investigation regarding plaintiffs’ immigration status but may

not ask plaintiffs such questions directly. As noted by

plaintiffs and in Massey, such investigation should have been

done at the time of hiring, not post-discrimination. 828 F.

Supp. at 322 n.10. The defendant-employer is not placed in an

adverse position because but for the lawsuit the employer

never would have had reason to pursue such an inquiry.

The Court finds this resolution consistent with

McKennon. In McKennon, the plaintiff-employee brought an

action alleging discrimination based on age. At plaintiff's

deposition she disclosed that she had wrongfully copied

confidential documents which would have otherwise resulted

68a

in her termination. The Supreme Court held that in such cases

“neither reinstatement nor front pay is an appropriate remedy”

and further held backpay damages would terminate on the

date the information at issue was acquired. 513 U.S. at 362.

The Supreme Court further abrogated the inevitable discovery

rule, as opposed to acquiring such information during the

course of discovery, as set forth in Massey. Id. However,

McKennon did not address application fraud committed by

undocumented aliens. Further, McKennon has afforded lower

courts some discretion in crafting a resolution to cases with

different facts: “The concern that employers might as a

routine matter undertake extensive discovery into an

employee’s background . . . to resist claims under the Act is

not an insubstantial one, but we think the authority of the

courts to award attorney’s fees . . . and to invoke the

appropriate provisions of the Federal Rules of Civil Procedure

will deter most abuses.” 513 U.S. at 363 (emphasis added).

This Court agrees with McKennon’s suggestion that “the

authority of the courts to award attorney’s fees . . . will deter

most abuses” for cases involving resume fraud and cases like

McKennon where the plaintiff-employee has engaged in

-wrongdoing warranting termination after being hired. The

chilling effect that discovery into backgrounds of such

employees bringing a Title VII action has is limited insofar as

those employees merely face a cap on damages. Unlike

employees who have committed application fraud or engaged

in wrongdoing while employed, however, undocumented

employees face a much more serious ramification from

background discovery — possible deportment and criminal

prosecution. Accordingly, based on this reasoning and based

on the partial immunity granted to undocumented employees

regarding their standing to bring a Title VII claim as granted

by Hacienda Hotel and Tortilleria, this Court does avail itself

to the appropriate provisions of the Federal Rules of Civil

Procedure to GRANT plaintiffs’ motion for protective order

regarding questions related to their documented status. As

stated supra, employers have an opportunity to investigate

69a

this during the time of application. While a defendant-

employer may certainly independently investigate a plaintiff-

employee’s immigration status, the Court declines to sanction

such investigation to include the use of the discovery process

from the plaintiff directly.

DATED: June 19, 2001

SANDRA M. SNYDER,

United States Magistrate Judge

70a

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF CALIFORNIA

MARTHA RIVERA, et al., )CV F 99-6443 AWI SMS

)

Plaintiffs, JORDER ENTERING

)FINDINGS AS TO

v. )DEC, 21, 2001 ORDER

JAND GRANTING MOTION

NIBCO, INC., et al., )TO CERTIFY ORDER FOR

JINTERLOCUTORY APPEAL

Defendants. )

This is an employment discrimination action. On June

18, 2001, the Magistrate Judge entered an Order Granting

Plaintiff’s Motion for Protective Order. Defendants filed a

motion for reconsideration for the Magistrate Judge’s order,

which the court denied in an order entered December 21,

2001. Defendants now move for an order amending the order

of December 21, 2001, to state that the order involves a

controlling question of law as to which there are substantial

grounds for difference of opinion and that an immediate

appeal from the order may materially advance the ultimate

termination of this litigation. Defendants also move the court

to certify the amended order for interlocutory appeal pursuant

to 28 U.S.C. section 1292(b).

The controlling statute, 28 U.S.C. 1292(b) provides as

follows:

(b) When a district judge, in making in a civil

action an order not otherwise appealable under this

section, shall be of the opinion that such order

involves a controlling question of law as to which

there is substantial ground for difference of opinion

and that an immediate appeal from the order may

Tla

materially advance the ultimate termination of the

litigation, he shall so state in writing in such order.

The Court of Appeals which would have

jurisdiction of an appeal of such action may

thereupon, in its discretion, permit an appeal to be

taken from such order, if application is made to it

within ten days after the entry of the order:

Provided, however, That application for an appeal

hereunder shall not stay proceedings in the district

court unless the district judge or the Court of

Appeals or a judge there of shall order.

In /n re Cement Antitrust Litigation, 673 F.2d 1020, 1026

(9th Cir. 1982) the Court of Appeals for the Ninth Circuit

held that the certification requirements of the statute are “(1)

that there be a controlling question of law, (2) that there be

substantial grounds for difference of opinion, and (3) that an

immediate appeal may materially advance the ultimate

termination of the litigation.”

“[AJll that mush be shown in order for a question to be

‘controlling’ is that resolution of the issue on appeal could

materially affect the outcome of litigation in the district

court.” /d. The court find that in the present case, the court’s

order of December 21, 2001, addresses the issue of to what

extent Defendants can determine each Plaintiff's potential

remedies in this case through the discovery process. The

outcome of this issue affects the remedies to which Plaintiffs

may be entitled should they prevail. The court finds,

therefore, that the resolution of the issue could materially

affect the outcome of this litigation.

The court further finds that there is substantial ground for

a difference of opinion in this case. Specifically, there is no

Ninth Circuit authority addressing the issue of whether the

Immigration Reform and Control -Act (“IRCA”) prohibits

defendants from inquiring into the legality of plaintiffs’

working in the United States through the civil discovery

process and whether the IRAC prohibits Defendants from

a ae aaa

72a

applying the after-acquired evidence doctrine to determine

Plaintiffs’ legal remedies.

Finally, the court finds that an immediate appeal of the

court’s order of December 21, 2001, will speed the final

resolution of this lawsuit. The resolution of the issues in

dispute will determine Plaintiffs’ ability to recover on their

claims for front pay and reinstatement, one of their primary

claims in this action. Thus, resolution of the issues will

greatly facilitate the efficient handling of this case. Further,

Defendants estimate that the trial in this case will last three to

four months, and anticipate appealing the court’s Order of

December 21, 2001, after final judgment, if necessary. In the

event that the Court of Appeals reverses this court’s decision,

discovery will have to be reopened and a significant amount

of time and resources will have been wasted in trying the

case. Finally, Defendants’ suggest that appellate resolution of

the extent that they can inquire about Plaintiffs’ alleged

damages could encourage settlement.

Based on the foregoing, the cour. HEREBY CERTIFIES

its December 21, 2001 order for interlocutory appeal pursuant

to 28 U.S.C. section 1292(b). The court denies as moot

Defendants’ request to amend the order of December 21,

2001.

IT IS SO ORDERED.

«

\

DATED:

ANTHONY W. ISHII

UNITED STATES DISTRICT JUDGE

cc

73a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTHA RIVERA; et al., ) No. 02-88046

)

Plaintiffs — Respondents, ) D.C. No. CV-99-

) 06443-WAI

- ) Eastern California

(Fresno)

NIBCO, INC., an Indiana corp.,

)

)

) ORDER

Defendant - Petitioner. )

)

Before: BROWNING, KOZINSKI and RYMER, Circuit

Judges

The petition for permission to appeal pursuant to 28 U.S.C. §

1292(b) is granted. Within 10 days of this order, petitioner

shall perfect the appeal pursuant to Federal Rule of Appellate

Procedure 5(d).

74a

RELEVANT STATUTORY PROVISIONS

42 U.S.C. 2000e-5(g)(1) provides:

'f the court finds that the respondent has

intentionally engaged in or is intentionally engaging

in an unlawful employment practice charged in the

complaint, the court may enjoin the respondent

from engaging in such unlawful employment

practice, and order such affirmative action as may

be appropriate, which may include, but is not

limited to, reinstatement or hiring of employees,

with or without back pay (payable by the employer,

employment agency, or labor organization, as the

case may be, responsible for the unlawful

employment practice), or any other equitable relief

as the court deems appropriate. Back pay liability

shall not accrue from a date more than two years

prior to the filing of a charge with the Commission.

Interim earings or amounts earnable_ with

reasonable diligence by the person or persons

discriminated against shall operate to reduce the

back pay otherwise allowable.

8 U.S.C. 1324a(a) provides, in relevant part:

(1) In general. It is unlawful for a person or other

entity (A) to hire, or to recruit or refer for a fee, for

employment in the United States an alien knowing

the alien is an unauthorized alien (as defined in

subsection (h)(3)) with respect to such

employment, * * *.

(2) Continuing employment. It is unlawful for a

person or other entity, after hiring an alien for

employment in accordance with paragraph (1), to

continue to employ the alien in the United States

knowing the alien is (or has become) an

75a

unauthorized alien with respect to such

employment.

8 U.S.C. 1324a(h)(3) provides, in relevant part:

[T]he term “unauthorized alien” means, with

respect to the employment of an alien at a particular

time, that the alien is not at that time either (A) an

alien lawfully admitted for permanent residence, or

(B) authorized to be so employed by this Act or by

the Attorney General.

8 U.S.C. 1324c(a) provides, in relevant part:

It is unlawful for any person or entity knowingly—

(1) to forge, counterfeit, alter, or falsely make any

document for the purpose of satisfying a

requirement of this Act or to obtain a benefit under

this Act,

(2) to use, attempt to use, possess, obtain, accept, or

receive or to provide any forged, counterfeit,

altered, or falsely made document in order to satisfy

any requirement of this Act or to obtain a benefit

under this Act,

(3) to use or attempt to use or to provide or attempt

to provide any document lawfully issued to or with

respect to a person other than the possessor

- (including a deceased individual) for the purpose of

satisfying a requirement of this Act or obtaining a

benefit under this Act * * *.