____________________________
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________________
MARIA CAZORLA, ET AL.,
Plaintiffs
v.
KOCH FOODS OF MISSISSIPPI, L.L.C.; JESSIE ICKOM,
Defendants
__________________________________________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant Cross-Appellee
v.
KOCH FOODS OF MISSISSIPPI, L.L.C.,
Defendant-Appellee Cross-Appellant
__________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
Nos. 3:10-cv-00135 & 3:11-cv-00391, Hon. Daniel P. Jordan III, Presiding
__________________________________________________
BRIEF OF PLAINTIFF-APPELLANT CROSS-APPELLEE
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
__________________________________________________
P. DAVID LOPEZ U.S. EQUAL EMPLOYMENT
General Counsel OPPORTUNITY COMMISSION
Office of General Counsel
JENNIFER S. GOLDSTEIN 131 M St. NE, Fifth Floor
Associate General Counsel Washington, D.C. 20507
(202) 663-4699
LORRAINE C. DAVIS anne.king@eeoc.gov
Assistant General Counsel Attorneys for Plaintiff-Appellant Cross-Appellee
ANNE W. KING U.S. Equal Employment
Attorney Opportunity Commission
No. 15-60562
MARIA CAZORLA, ET AL., Plaintiffs v. KOCH FOODS OF MISSISSIPPI, L.L.C.; JESSIE ICKOM, Defendants
__________________________________________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant Cross-Appellee v. KOCH FOODS OF MISSISSIPPI, L.L.C., Defendant-Appellee Cross-Appellant
The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.
1. Judge Daniel P. Jordan III
2. Magistrate Judge F. Keith Ball
3. Plaintiff-Appellant Cross-Appellee Equal Employment Opportunity Commission (“EEOC”)
4. Individual Plaintiffs and Intervenors
Agustin Barragan-Davalos
Aracely Calderon-Cortez
Erwin Castillo-Lopez
Ivone Castillo-Lopez
Maria Cazorla
Jose Luis Cordero-Toledo
Hidalia (or Idalia) Domingo-Maldonado
Mardoqueo Ariel Lopez-Lopez
Magnolia Perez-Hernandez
Jose Dolores Rivera-Aranda
Alma Roxana Roblero-Aguilar
5. Defendant-Appellee Cross-Appellant Koch Foods of Mississippi, L.L.C. (“Koch Foods”)
6. Defendant Jessie Ickom
7. Aggrieved Individuals
Classes of Hispanic and female employees who were employed with Koch Foods between approximately 2004 and 2008 and who were subjected to harassment on the basis of sex (female), and/or harassment on the basis of race/national origin (Hispanic), and/or retaliation in violation of Title VII of the Civil Rights Act of 1964. See ROA.7347-49.
8. Amicus Curiae Southern Poverty Law Center
9. Attorneys for Plaintiff-Petitioner Cross-Appellee EEOC (active and inactive)
Julie Steptoe Bean - Administrative Judge (formerly Supervisory Trial Attorney), EEOC
Lorraine C. Davis - Assistant General Counsel, EEOC
Jennifer S. Goldstein - Associate General Counsel, EEOC
Anne W. King - Attorney, EEOC
Ylda Marisol Kopka - Supervisory Trial Attorney, EEOC
P. David Lopez - General Counsel, EEOC
Marsha Lynn Rucker - Supervisory Trial Attorney, EEOC
C. Emanuel Smith - Regional Attorney, EEOC
Christina Andrea Vigil - Senior Trial Attorney, EEOC
10. Attorneys for Defendant-Respondent Cross-Appellant Koch Foods (active and inactive)
Jeremy M. Clay - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Nakimuli O. Davis-Primer - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Adam H. Gates - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Russell W. Gray - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Jennifer G. Hall - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Adria H. Jetton - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Scott W. Pedigo - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Ceejaye S. Peters - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
11. Attorneys for Individual Plaintiffs and Intervenors (active and inactive)
Javier N. Maldonado - Law Office of Javier Maldonado, PC
Sibyl C. Byrd - McDuff & Byrd
Jacob W. Howard - McDuff & Byrd
Robert B. McDuff - McDuff & Byrd
M. Briana Beltran - Southern Migrant Legal Services
Caitlin I. Berberich - Southern Migrant Legal Services
Angela Graves - Southern Migrant Legal Services
Stacie L. Jonas - Southern Migrant Legal Services
Spring A. Miller - Southern Migrant Legal Services
Douglas I. Stevick - Southern Migrant Legal Services
Kathryn J. Youker - Texas Rio Grande Legal Aid, Inc. - Brownsville
Jerome Wesevich - Texas Rio Grande Legal Aid, Inc. - El Paso
12. Attorneys for Amicus Curiae Southern Poverty Law Center (active and inactive)
Thomas P. Fritzsche - Immigrant Justice Project/Southern Poverty Law Center
Jody E. Owens II - Southern Poverty Law Center - Jackson
s/ Anne W. King___________
Attorney of record for the
Equal Employment
Opportunity Commission
The Equal Employment Opportunity Commission (“EEOC” or “Commission”) alleges in this Title VII action that Koch Foods of Mississippi, L.L.C. (“Koch Foods”), unlawfully maintained a pattern or practice of a hostile work environment based on sex, race, and/or national origin, and retaliated against workers who engaged in protected activity. In this interlocutory appeal, the Commission seeks review of the district court’s order permitting discovery of U-visa applications and related materials from the aggrieved individuals subject to the alleged discrimination. The disposition of this case requires the interpretation and analysis of several federal statutes and regulations pertaining to U-visas, especially 8 U.S.C. § 1367 and 8 C.F.R. § 214.14. This case also presents a question of first impression before this Court: whether federal law, particularly 8 U.S.C. § 1367 and 8 C.F.R. § 214.14, precludes discovery of U-visas from the aggrieved individuals. The Commission believes that oral argument would assist the Court in resolving these issues.
CERTIFICATE OF INTERESTED PERSONS
STATEMENT REGARDING ORAL ARGUMENT
A. Parties and Aggrieved Individuals
B. The EEOC’s Allegations of Title VII Violations by Koch Foods
A. Filing of Suits and Consolidation
III. The district court abused its discretion in holding that U-visa discovery is relevant.
A. Immigration status—and U-visa discovery—is irrelevant to Title VII liability.
V. The district court’s discovery rulings affected the EEOC’s substantial rights.
CERTIFICATE OF SERVICE
CERTIFICATE OF COMPLIANCE
STATUTORY AND REGULATORY ADDENDUM
Page(s)
Cases
Avila-Blum v.
Casa de Cambia Delgado, Inc.,
236 F.R.D. 190 (S.D.N.Y. 2006)......................................................... 54, 55
In re Bemis Co.,
279 F.3d 419 (7th Cir. 2002)..................................................................... 63
Burlington N.
& Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006)..................................................................................... 63
Corley v. United
States,
556 U.S. 303 (2009)................................................................................... 37
Crosby v. La.
Health Serv. & Indem. Co.,
647 F.3d 258 (5th Cir. 2011)............................................................... 43, 46
David v. Signal
Int’l, L.L.C.,
735 F. Supp. 2d 440 (E.D. La. 2010)................................................... 41, 57
De La Rosa v. N.
Harvest Furniture,
210 F.R.D. 237 (C.D. Ill. 2002)................................................................. 40
Dell Comput.
Corp. v. Rodriguez,
390 F.3d 377 (5th Cir. 2004)..................................................................... 27
Demaj v. Sakaj,
No. 3:09 CV 255(JGM), 2013 WL 1131418
.... (D. Conn. March 18, 2013)........................................................................ 52
Demaj v. Sakaj,
No. 3:09cv255(JGM), 2012 WL 476168
.... (D. Conn. Feb. 14, 2012)............................................................... 37, 38, 53
EEOC v. Bice of
Chi.,
229 F.R.D. 581 (N.D. Ill. 2005)........................................................... 40, 57
EEOC v. Glob.
Horizons, Inc.,
No. 11-00257, 2012 U.S. Dist. LEXIS 182021
.... (D. Haw. Dec. 21, 2012)............................................................................ 57
EEOC v. Rest.
Co.,
448 F. Supp. 2d 1085 (D. Minn. 2006)...................................................... 40
EEOC v. Shell
Oil Co.,
466 U.S. 54 (1984)..................................................................................... 63
EEOC v. Sterling
Jewelers, Inc.,
__ F.3d __, 2015 WL 5233636 (2d Cir. Sept. 9, 2015)............................. 45
EEOC v.
Tortilleria “La Mejor”,
758 F. Supp. 585 (E.D. Cal. 1991)............................................................ 40
EEOC v. Waffle
House, Inc.,
534 U.S. 279 (2002)................................................................................... 35
EEOC v.
Willamette Tree Wholesale, Inc.,
No. CV 09-690-PK, 2010 U.S. Dist LEXIS 97380
.... (D. Or. July 8, 2010).................................................................................. 61
Espinoza v.
Farah Mfg. Co.,
414 U.S. 86 (1973)..................................................................................... 40
Exelon Wind 1,
L.L.C. v. Nelson,
766 F.3d 380 (5th Cir. 2014)..................................................................... 36
Galaviz-Zamora
v. Brady Farms, Inc.,
230 F.R.D. 499 (W.D. Mich. 2005)............................................................ 57
Gen. Tel. Co. of
the Nw., Inc. v. EEOC,
446 U.S. 318 (1980)................................................................................... 35
Green v. Life
Ins. Co. of N. Am.,
754 F.3d 324 (5th Cir. 2014)................................................... 27, 28, 39, 63
Hawke v. U.S.
Dep’t of Homeland Sec.,
No. C-07-03456 RMW, 2008 WL 4460241
.... (N.D. Cal. Sept. 29, 2008)................................................................... 34, 37
Kasten v.
Saint-Gobain Performance Plastics Corp.,
563 U.S. 1, 131 S. Ct. 1325 (2011)............................................................ 36
Kern v. TXO
Prod. Corp.,
738 F.2d 968 (8th Cir. 1984)..................................................................... 27
Mach Mining, LLC
v. EEOC,
135 S. Ct. 1645 (2015)............................................................................... 45
Moore v. CITGO
Ref. & Chems. Co., L.P.,
735 F.3d 309 (5th Cir. 2013)......................................................... 28, 34, 47
Murphy v.
Deloitte & Touche Grp. Ins. Plan,
619 F.3d 1151 (10th Cir. 2010)................................................................. 43
Occidental Life
Ins. Co. of Cal. v. EEOC,
432 U.S. 355 (1977)................................................................................... 44
People v.
Bartlett,
No. 5860/11, 2013 WL 3199088 (N.Y. Sup. Ct. 2013)............................. 37
In re Reyes,
814 F.2d 168 (5th Cir. 1987)......................................................... 12,
40, 56
Rivera v. NIBCO,
Inc.,
364 F.3d 1057 (9th Cir. 2004)............................................................. passim
Sandoval v. Am.
Bldg. Maint. Indus., Inc.,
267 F.R.D. 257 (D. Minn. 2007)................................................................ 57
Serrano v.
Cintas Corp.,
699 F.3d 884 (6th Cir. 2012),
.... cert. denied sub nom. Cintas Corp. v. EEOC, 134 S. Ct. 92 (2013)............ 45
Sure-Tan, Inc.
v. NLRB,
467 U.S. 883 (1984)................................................................................... 59
United States v.
Walker,
772 F.2d 1172 (5th Cir. 1985)................................................................... 28
In re:
Volkswagen of Am., Inc.,
545 F.3d 304 (5th Cir. 2008) (en banc).................................... 27, 39, 47, 53
Yamaha Motor
Corp., U.S.A. v. Calhoun,
516 U.S. 199 (1996)..................................................................................... 2
Statutes
8 U.S.C. § 1101(a)(15)(U)(i)......................................................... 30, 32, 41, 51
8 U.S.C. § 1101(a)(15)(U)(ii).......................................................................... 29
8 U.S.C. § 1101(a)(15)(U)(iii)................................................................... 30, 31
8 U.S.C. § 1182.............................................................................................. 30
8 U.S.C. § 1182(a)(6)(C)(i)............................................................................. 52
8 U.S.C. § 1182(d)(14)................................................................................... 30
8 U.S.C. § 1184(p)(1)......................................................................... 31, 32, 50
8 U.S.C. § 1184(p)(2)(A)................................................................................ 43
8 U.S.C. § 1184(p)(4)..................................................................................... 51
8 U.S.C. § 1184(p)(6)..................................................................................... 29
8 U.S.C. § 1255(m)(1)(A)............................................................................... 29
8 U.S.C. § 1255(m)(1)(B)............................................................................... 29
8 U.S.C. § 1367........................................................................................ 37, 38
8 U.S.C. § 1367(a)(2)............................................................................... passim
8 U.S.C. § 1367(b)(2)..................................................................................... 33
8 U.S.C. § 1367(b)(4)............................................................................... 25, 36
8 U.S.C. § 1367(b)(8)..................................................................................... 33
8 U.S.C. § 1367(c).......................................................................................... 33
28 U.S.C. § 1292(b)................................................................................ 1, 2, 24
28 U.S.C. § 1331.............................................................................................. 1
28 U.S.C. § 1343(a)(4)...................................................................................... 1
28 U.S.C. § 1345.............................................................................................. 1
42 U.S.C. § 1981............................................................................................ 11
42 U.S.C. § 2000e-5......................................................................................... 3
42 U.S.C. § 2000e-5(b)............................................................................... 3, 45
42 U.S.C. § 2000e-5(f)(1)................................................................................. 1
42 U.S.C. § 2000e-5(f)(3)................................................................................. 1
42 U.S.C. § 2000e-6......................................................................................... 1
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq................ 1
Pub. L. No. 113-4, 127 Stat. 54, § 810(a)(2)(C) (2013).................................. 33
Pub. L. No. 113-4, 127 Stat. 54, § 810(a)(4) (2013)....................................... 33
Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464, § 1513............................................................................... 29
Victims of Trafficking and Violence Prevention Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464, § 1513(a)(2)(A)................................................................. 30
Regulations
8 C.F.R. § 212.17........................................................................................... 30
8 C.F.R. § 212.17(b)(1)................................................................................... 30
8 C.F.R. § 214.14......................................................................... 24, 28, 35, 48
8 C.F.R. § 214.14(a)(2)............................................................................. 32, 33
8 C.F.R. § 214.14(a)(5)................................................................................... 31
8 C.F.R. § 214.14(a)(9)............................................................................. 30, 31
8 C.F.R. § 214.14(a)(12)........................................................................... 31, 50
8 C.F.R. § 214.14(b)....................................................................................... 41
8 C.F.R. § 214.14(b)(1)................................................................................... 54
8 C.F.R. § 214.14(b)(2)................................................................................... 50
8 C.F.R. § 214.14(c)(1)............................................................................. 32, 51
8 C.F.R. § 214.14(c)(2)(i)................................................................................ 50
8 C.F.R. § 214.14(c)(2)(iv).............................................................................. 30
8 C.F.R. § 214.14(c)(4)............................................................................. 32, 51
8 C.F.R. § 214.14(c)(7)................................................................................... 29
8 C.F.R. § 214.14(d)....................................................................................... 43
8 C.F.R. § 214.14(e)....................................................................................... 17
8 C.F.R. § 214.14(e)(1)................................................................................... 33
8 C.F.R. § 214.14(e)(2)................................................................................... 33
8 C.F.R. § 214.14(f)(1)................................................................................... 29
8 C.F.R. § 214.14(h)(2)(i)(A).......................................................................... 51
8 C.F.R. § 214.14(h)(2)(i)(C).......................................................................... 51
8 C.F.R. § 214.14(i)........................................................................................ 52
Rules
Fed. R. App. P. 5.............................................................................................. 2
Fed. R. Civ. P. 26(b)(1)............................................................................. 34, 39
Fed. R. Civ. P. 26(b)(2)(C)(i).................................................................... 46, 54
Fed. R. Civ. P. 26(b)(2)(C)(iii)............................................................ 46, 54, 56
Fed R. Civ. P. 26(c)......................................................................................... 54
Fed. R. Civ. P. 26(c)(1)....................................................................... 34, 47, 56
Fed. R. Civ. P. 45...................................................................................... 18, 58
Fed. R. Civ. P. 72(a)......................................................................................... 1
Legislative Materials
H.R. Rep. No. 106-939 (2000) (Conf. Rep.)................................................... 31
H.R. Rep. No. 109-233 (2005)........................................................................ 32
151 Cong. Rec. E2605, 2005 WL 3453763 (Dec. 17, 2005) (statement of Rep. Conyers)..................................................................................................... 32
This is a public enforcement action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The EEOC is authorized to bring this action under Sections 706(f)(1), 706(f)(3), and 707 of Title VII, 42 U.S.C. §§ 2000e‑5(f)(1) & (f)(3) & 2000e-6. The district court had subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(4), & 1345. The EEOC filed suit No. 11-cv-391 on June 29, 2011, ROA.13856-70, and the district court consolidated that suit with No. 10-cv-135 on December 5, 2011. ROA.339-43.
This Court has jurisdiction over this interlocutory appeal under 28 U.S.C. § 1292(b). On January 24, 2014, the magistrate judge denied in part and granted in part Koch Foods’ motions to compel and for reconsideration of a protective order. ROA.12153-56 (RE Tab 7). On February 7, 2014, the Commission and Individual Plaintiffs timely filed objections and a motion to review the January 24 order under Fed. R. Civ. P. 72(a). ROA.12248-85. On September 22, 2014, the district court entered an order overruling in part the magistrate judge’s January 24 order. ROA.13041-54 (RE Tab 5). On October 29, 2014, the district court entered an order clarifying the September 22 order. ROA.13097-101 (RE Tab 6).
On January 6, 2015, the Commission filed a motion asking the district court to certify its September 22 and October 29 orders (“Orders”) for interlocutory appeal under 28 U.S.C. § 1292(b). ROA.13224-26. The district court granted the Commission’s motion and certified the Orders for interlocutory appeal on June 30, 2015. ROA.13355-62 (RE Tab 3).
On July 10, 2015, the Commission timely petitioned this Court under 28 U.S.C. § 1292(b) and Fed. R. App. P. 5 for permission to appeal from the Orders. No. 15‑90021 (5th Cir.), Pet. Permission to Appeal Interlocutory Order Pursuant to 28 U.S.C. § 1292(b). On July 23, 2015, Koch Foods filed a cross-petition requesting this Court for permission to appeal. No. 15-90021 (5th Cir.), Answer and Cross-Pet. of Koch Foods of Mississippi, LLC Resp. EEOC’s Pet. Permission to Appeal Interlocutory Order Pursuant to 28 U.S.C. § 1292(b). This Court granted the Commission’s petition and Koch Foods’ cross-petition on August 12, 2015. ROA.13363-64 (RE Tab 4). This Court has jurisdiction over “any issue fairly included within the certified [O]rder[s].” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996).
1. Whether the district court abused its discretion in failing to bar discovery of U-visa materials from the Aggrieved Individuals outright.
2. Whether the district court abused its discretion in deeming U-visa discovery relevant.
3. Whether the district court abused its discretion in balancing countervailing factors against Koch Foods’ claimed need for U-visa discovery.
4. Whether the district court’s discovery rulings should be reversed because they affected the EEOC’s substantial rights.
Plaintiff-Appellant Cross-Appellee EEOC is the federal law enforcement agency charged with the enforcement of Title VII. 42 U.S.C. § 2000e-5. The Commission brought this suit in the public interest seeking relief for seven Charging Parties and classes of female and Hispanic workers (collectively, “Aggrieved Individuals”). ROA.7320-21 (RE Tab 10).[2]
Defendant-Appellee Cross-Appellant Koch Foods is a wholly owned subsidiary of Koch Foods, Inc. ROA.8344. Koch Foods operates a poultry processing facility, or “slaughter plant,” located in Morton, Mississippi, which processes chickens and packages them for shipment to customers. ROA.7849.
The Aggrieved Individuals for whom the EEOC seeks relief are female and Hispanic employees who worked at Koch Foods’ Morton slaughter plant between approximately 2004 and 2008. ROA.7324 (RE Tab 10). The EEOC’s Third Amended Complaint identified a total of 115 Aggrieved Individuals by name, including the Charging Parties. ROA.7320-21 (RE Tab 10), ROA.7347-49 (RE Tab 10). The seven Charging Parties and four additional Aggrieved Individuals are also individual plaintiffs in this suit (“Individual Plaintiffs”), for a total of eleven Individual Plaintiffs. ROA.251-52, ROA.345-47. The Individual Plaintiffs are intervenors in this appeal. No. 15-90021 (5th Cir.), Order Granting Individual Pls.’ Mot. Intervene (Sept. 2, 2015).[3]
The EEOC’s allegations largely focused on Koch Foods employees who worked in or near the thigh debone or debone support departments (collectively, “debone department”) at the Morton slaughter plant. See ROA.7324 (RE Tab 10). Debone department employees handled tasks including removing bones, cutting, checking, weighing, boxing, and refrigerating meat. ROA.7324 (RE Tab 10), ROA.7852. The labor force in the debone department was predominantly Hispanic—as much as ninety percent, which was significantly higher than the overall rate of Hispanic workers at the Morton slaughter plant. ROA.7857-77, ROA.8643-44, ROA.8756-57, ROA.8939, ROA.9348, ROA.9508-09. Most of the workers in the debone department were Spanish speakers who spoke and understood only limited English—or no English at all—and several Aggrieved Individuals have testified to their limited English skills. See, e.g., ROA.8756-59, ROA.8943-45, ROA.8957-60, ROA.9320, ROA.9360-62, ROA.9373, ROA.9401, ROA.9408, ROA.9434, ROA.9461-62.
The EEOC alleged that, between 2004 and 2008, Koch Foods violated Title VII by maintaining a pattern or practice of a hostile work environment based on sex, race, and/or national origin and retaliating against workers who engaged in protected activity, adversely affecting the Charging Parties and classes of female and Hispanic employees. ROA.7320-21 (RE Tab 10), ROA.7347-49 (RE Tab 10). The EEOC alleged that Koch Foods’ agents, particularly supervisors in the debone department, perpetrated harassment and retaliation, and that Koch Foods knew of this conduct and allowed it to persist. ROA.7324-26 (RE Tab 10).
First, the EEOC alleged a hostile work environment based on sex. ROA.7341-43 (RE Tab 10). Female workers recounted regular, unwelcome sexual touching as they worked on the plant’s production floor; for example, workers described being groped on the breasts and buttocks and between their legs, and some testified that a supervisor regularly rubbed himself against their bodies. See, e.g., ROA.9012-17, ROA.9059-61, ROA.9167-70, ROA.9222, ROA.9426-28. This unwanted sexual touching occurred in plain sight of other workers. See, e.g., ROA.9078, ROA.9131, ROA.9268-71, ROA.9424-25. Also, female workers were propositioned for sex in exchange for money or promotions. See, e.g., ROA.9171-72, ROA.9050-57, ROA.9392. And workers testified to frequent sexually explicit comments and obscene gestures by supervisors, sometimes occurring several times a week. See, e.g., ROA.9078-83, ROA.9145-46, ROA.9172-73, ROA.9175-81, ROA.9374-75, ROA.9393-95.
This harassment sometimes escalated to serious assaults, some of which other workers witnessed. See, e.g., ROA.9096-100, ROA.9244-47. For example, Charging Party Aracely Calderon-Cortez testified that a supervisor digitally raped her, penetrating her with his fingers in an isolated storage area. ROA.8998. Charging Party Idalia Domingo-Maldonado testified that a supervisor assaulted her in a hallway, pushing her against a wall and thrusting his hand into her blouse as she struggled to escape. ROA.9163-66.
Second, the EEOC alleged a hostile work environment based on race and/or national origin. ROA.7343-44 (RE Tab 10). For example, Hispanic workers testified that they were subjected to physical abuse as they worked on the production floor, including punching, striking, jabbing, elbowing, and poking in the stomach, ribs, and head. See, e.g., ROA.9133-34, ROA.9194-95, ROA.9264-66, ROA.9391-92, ROA.9440. These unwanted physical assaults were open and visible to other workers on the production floor. See, e.g., ROA.9088-90, ROA.9156-62, ROA.9242-44, ROA.9268-71. Workers also testified that supervisors subjected them to derogatory, racially charged insults, including calling workers “motherfucker illegals,” “fucking Mexicans,” “stupid Mexicans,” and “animals.” See, e.g., ROA.9063, ROA.9140, ROA.9229-31, ROA.9314, ROA.9373.
Additionally, the EEOC alleged that Koch Foods supervisors and others engaged in extortion of Hispanic employees by demanding compensation for basic privileges of employment. ROA.7343 (RE Tab 10). For example, Hispanic workers testified that a supervisor conditioned permission to take personal, vacation, and sick leave—and even bathroom breaks—on payments of cash. See, e.g., ROA.9037-46, ROA.9126-30, ROA.9201-08, ROA.9338-39. Hispanic workers also testified that supervisors demanded cash—normally in the hundreds of dollars—to obtain approval for transfers to more desirable positions. See, e.g., ROA.9048-52, ROA.9188-93, ROA.9383-84, ROA.9440-41, ROA.9468-69.
The EEOC alleged that Koch Foods may be held liable for harassment based on sex, race, and national origin because it knew or should have known of the hostile work environment but failed to take appropriate corrective action, and because the hostile work environment resulted in a tangible employment action for some employees. ROA.7326 (RE Tab 10), ROA.7342-44 (RE Tab 10). As described, much of the harassment occurred openly on the plant’s production floor, in plain view, and employees complained of harassment to Koch Foods management—as management witnesses have testified. See, e.g., ROA.5995-97, ROA.6022-26, ROA.6035-37, ROA.6072-77, ROA.6086-92, ROA.7372-78. Koch Foods itself acknowledged mistreatment of employees as a basis for finally terminating certain supervisors in 2008, although the hostile work environment had already persisted for years by that point. ROA.5966-67, ROA.6097-98, ROA.6112-21.
Also, Koch Foods failed to provide an effective mechanism for employee complaints, particularly for Spanish-speaking employees with limited English skills. ROA.7338-39 (RE Tab 10). And employees who opposed harassment or complained to management faced threats and reprisals from supervisors. ROA.7339-40 (RE Tab 10); see also infra at 9-10 (describing retaliation against employees). The debone department supervisors who perpetrated the harassment exercised substantial control over employees; for example, Koch Foods authorized them to recommend employees for training, hire, promotion, job assignments, discipline, transfers, and termination. ROA.431, ROA.8359, ROA.8426-27, ROA.8461, ROA.8727, ROA.8768, ROA.8931-34, ROA.8949, ROA.8976-77, ROA.8979-83.
The EEOC also alleged that Koch Foods retaliated against employees (and their family members who also worked at Koch Foods) for protected activity such as protesting supervisors’ conduct, refusing to submit to sexual demands or extortion, and making reports to management. ROA.7339-40 (RE Tab 10). Reprisals for protected activity included reduced wages, demotions, terminations, reassignments to menial and degrading work, and threats of physical violence, arrest, or deportation. ROA.7340 (RE Tab 10). For example, workers testified that they were threatened with significant consequences—such as termination, arrest, and reports to immigration enforcement authorities—if they complained of mistreatment. See, e.g., ROA.9218-19, ROA.9232-36, ROA.9259-60, ROA.9262-63, ROA.9277, ROA.9428. Charging Party Ivone Castillo-Lopez testified that a supervisor offered her a cutter position in exchange for money or sex, then assaulted her and threatened her with termination when she said she would report him. ROA.9058. Moreover, in 2008, Koch Foods took the unusual step of reporting numerous employees to federal criminal authorities—not civil immigration authorities—for possible violations of immigration and employment verification laws. See ROA.2100, ROA.12221-22. More recently, Koch Foods indicated that if it learns an employee does not have work authorization, it will terminate the employee. ROA.12661.
Before filing this suit, the EEOC conducted an investigation of charges alleging hostile work environment and retaliation by Koch Foods. See ROA.884‑947. In September 2010, the EEOC issued cause determinations for several Charging Parties and classes of individuals subjected to hostile work environment based on sex, race, and/or national origin. Id. The EEOC unsuccessfully attempted to resolve the charges via conciliation with Koch Foods. ROA.7323 (RE Tab 10).
On June 29, 2011, the Commission filed suit, No. 11-cv-391, under Title VII. ROA.7323 (RE Tab 10), ROA.13856-70. The Commission sought injunctive relief and punitive and compensatory damages (including compensation for emotional pain and suffering and nonpecuniary losses) for the Charging Parties and Aggrieved Individuals, but did not seek back pay or front pay. ROA.7349-50 (RE Tab 10).
Separately, on March 1, 2010, former Koch Foods employee Maria Cazorla had filed suit, No. 10-cv-135, against Koch Foods and supervisor Jessie Ickom under 42 U.S.C. § 1981 and state law. ROA.92-104. Several additional employees later joined that suit. ROA.251-52. The district court stayed the individual employees’ suit pending the EEOC’s investigation and conciliation efforts on the Title VII charges. ROA.193, ROA.200, ROA.210, ROA.320-21. On December 5, 2011, the district court consolidated that action with the EEOC’s action under No. 10-cv-135, and the seven Charging Parties intervened in the EEOC’s action. ROA.339-43, ROA.345-47, ROA.1035. In total, eleven Individual Plaintiffs (all of whom are Aggrieved Individuals) joined the employees’ 42 U.S.C. § 1981 and state law suit, intervened in the EEOC’s Title VII action, or both. ROA.251-52, ROA.345-47, ROA.1035, ROA.7347-49 (RE Tab 10).
In August 2012, Koch Foods served the EEOC and the Individual Plaintiffs with written discovery requests seeking, among other things, disclosure of information that would reveal past or current immigration status. ROA.1352-95. The EEOC and the Individual Plaintiffs sought a protective order. ROA.1123-27.
On November 30, 2012, the magistrate judge granted a protective order denying Koch Foods discovery of “immigration status or any information regarding immigration proceedings.” ROA.1908 (RE Tab 9). Koch Foods asserted that immigration status was relevant, but the magistrate judge found its relevance arguments “tenuous.” Id. The magistrate judge further reasoned that “[a]ny relevance of immigration status is clearly outweighed by the in [terrorem] effect disclosure of this information would have in discouraging the individual plaintiffs and [the Aggrieved Individuals] from asserting their rights in this lawsuit.” Id. Citing In re Reyes, 814 F.2d 168 (5th Cir. 1987), the magistrate judge explained that courts have “recogniz[ed] the chilling or ‘in [terrorem]’ effect which allowing inquiry into plaintiffs’ immigration status would have on the assertion of their rights” and therefore routinely “limit discovery in this area in employment discrimination or workers’ rights lawsuits.” ROA.1906 (RE Tab 9). The district court affirmed the protective order, overruling Koch Foods’ objections. ROA.3141-45.
Meanwhile, the parties conducted discovery pursuant to the magistrate judge’s protective order. Koch Foods deposed dozens of Aggrieved Individuals, including all of the Charging Parties and the other Individual Plaintiffs, and the EEOC and the Individual Plaintiffs deposed several Koch Foods witnesses. See, e.g., ROA.34-35, ROA.38-39, ROA.42-47, ROA.49-50, ROA.53-57, ROA.61-62. Then, on April 19, 2013, notwithstanding the protective order, Koch Foods served the EEOC and the Individual Plaintiffs with new discovery requests seeking immigration-related disclosures. ROA.4072-76 (RE Tab 11), ROA.4090-93 (RE Tab 11). In particular, Koch Foods sought voluminous written discovery (“U-visa discovery”) relating to any efforts by the Individual Plaintiffs and other Aggrieved Individuals to obtain U-visas, which permit immigrant victims of certain crimes to obtain temporary status. ROA.4072-76 (RE Tab 11), ROA.4090-93 (RE Tab 11). At that time, discovery was scheduled to close in October 2013, only about six months later. ROA.1813.[4]
After the EEOC and the Individual Plaintiffs objected to Koch Foods’ new written discovery, Koch Foods filed a motion to compel “U visa information” and to reconsider the existing protective order. ROA.3267-88. For the first time in this litigation, Koch Foods speculated that the Aggrieved Individuals and Individual Plaintiffs sought U-visas based on conduct alleged in this lawsuit (such as sexual assault, physical assault, and extortion), and that they fabricated their allegations in order to obtain visas. ROA.4320. The EEOC and the Individual Plaintiffs opposed Koch Foods’ motion, underscoring that Koch Foods already had opportunities to question Individual Plaintiffs and Aggrieved Individuals about their reasons for seeking help from the EEOC and participating in this lawsuit. ROA.5664, ROA.5719-25, ROA.5729-30, ROA.5743-44, ROA.5780-81. The EEOC also filed a motion to strike portions of Koch Foods’ motion as unsupported by evidence. ROA.5633-59 .
The magistrate judge and the district court issued four orders pertaining to U-visa discovery: (1) the magistrate judge’s January 24, 2014 order granting in part and denying in part Koch Foods’ motion to compel (ROA.12153-56 (RE Tab 7)); (2) the district court’s September 22, 2014 order affirming in part and overruling in part the magistrate judge’s January 24 order (ROA.13041-54 (RE Tab 5)); (3) the district court’s October 29, 2014 order clarifying the September 22 order (ROA.13097-101 (RE Tab 6)); and (4) the magistrate judge’s December 8, 2014 confidentiality and protective order (ROA.13215-21 (RE Tab 9)).
The magistrate judge’s January 24 order granted Koch Foods’ motion to compel in part, permitting U-visa discovery from the EEOC and the Individual Plaintiffs, but again declining to allow general discovery of immigration status and related information. ROA.12155-56 (RE Tab 7). The magistrate judge summarized Koch Foods’ position as follows:
It is Koch Foods’s contention that some of the allegations made by the individual plaintiffs and claimants, particularly claims of sexual and physical assaults and extortion, are false and were made solely for the purpose of obtaining [U-visas]. Koch Foods argues that this possibility is particularly real given the fact that the EEOC is one of the law enforcement agencies that can certify an applicant’s cooperation to support the granting of a U visa. Thus, Koch Foods argues that U visa applications are relevant to that defense.
ROA.12154 (RE Tab 7) (internal citation omitted). The magistrate judge also explained that “Plaintiffs argue that Koch Foods’s so-called evidence of fabrication of claims as part of a scheme to obtain legal status in this country consists of mere conjecture and speculation,” acknowledging that “[t]he Court agrees with Plaintiffs’ characterization of many of Koch Foods[’s] statements.” ROA.12155 (RE Tab 7).
The magistrate judge nevertheless granted Koch Foods’ motion for U-visa discovery, subject to an appropriate protective order. ROA.12155 (RE Tab 7). The magistrate judge held (1) that U-visa discovery was relevant because Koch Foods “ha[d] raised a legitimate defense regarding U visas”; and (2) that relevance “clearly outweigh[ed] [the] in [terrorem] effect, as any individuals who have applied for [U-visas] have, necessarily, already disclosed their immigration status to federal authorities.” ROA.12155 (RE Tab 7). Although the EEOC and the Individual Plaintiffs had invoked the U-visa confidentiality mandate under 8 U.S.C. § 1367(a)(2), see ROA.5667-68, the January 24 order entirely failed to address that statute. The EEOC and the Individual Plaintiffs filed objections and a motion to review the magistrate judge’s order. ROA.12248-85.
On September 22, 2014, after conducting an in camera review, the district court adopted in part and modified in part the magistrate judge’s January 24 order. ROA.13041 (RE Tab 5). The September 22 order blocked U-visa discovery from the EEOC, ordered the Individual Plaintiffs to respond in part to Koch Foods’ U-visa discovery requests, and held that U-visa discovery to the Aggrieved Individuals would be permissible, even though Koch Foods had not yet requested such discovery from the Aggrieved Individuals. ROA.13047 (RE Tab 5), ROA.13051 (RE Tab 5), ROA.13053 (RE Tab 5).
First, the district court overruled the magistrate judge’s holding authorizing Koch Foods to obtain U-visa discovery from the EEOC. The district court held that 8 U.S.C. § 1367(a)(2), coupled with 8 C.F.R. § 214.14(e), prohibits the EEOC from disclosing U-visa applications. ROA.13046-47 (RE Tab 5). The district court explained that, in this context, 8 U.S.C. § 1367(a)(2) and 8 C.F.R. § 214.14(e) “preclude[] [the EEOC] from ‘permit[ting] use by or disclosure to anyone … of any information which relates to an alien who is the beneficiary of a [U-visa application].” ROA.13046-47 (RE Tab 5) (quoting 8 U.S.C. § 1367(a)(2)) (emphasis added) (third alteration in original). Therefore, the district court held that 8 U.S.C. § 1367(a)(2) and 8 C.F.R. § 214.14(e) “cover[] the information Koch Foods seeks in its written discovery to the EEOC.” ROA.13047 (RE Tab 5).
However, the district court determined that 8 U.S.C. § 1367(a)(2) did not preclude discovery from the Individual Plaintiffs, concluding that the statute “does not prohibit discovery directly from an applicant who is a party in the civil context” because “[it] makes no reference to a blanket prohibition against disclosure by any person.” [5] ROA.13046 (RE Tab 5). And although Koch Foods had never sought U-visa discovery directly from the Aggrieved Individuals, the district court added in a footnote that pursuing U-visa discovery from the Aggrieved Individuals “through other means [aside from discovery to the EEOC], including a [Fed. R. Civ. P. 45] subpoena” “would not violate § 1367(a)(2).” ROA.13047-48 (RE Tab 5).
Next, the district court concluded that U-visa discovery was relevant. The district court characterized Koch Foods’ justification for U-visa discovery as a “credibility argument” predicated on the company’s belief that U-visas provide “a powerful motivation for making a false claim.” ROA.13050 (RE Tab 5). To support its relevance determination, the district court cited, in particular, “[t]he EEOC[’s] [ ] authority to issue law-enforcement certifications necessary to obtain U-visa eligibility” and what it characterized as a perceived “spike” or “exponential jump” “in claims during the EEOC’s post-suit investigation.” Id. That is, the individual suit began with eight Individual Plaintiffs and the EEOC later named 115 Aggrieved Individuals. Id.
The district court then affirmed the magistrate judge’s holding that Koch Foods’ claimed need for U-visas outweighed the in terrorem effect with respect to the Individual Plaintiffs. Id. In a footnote, the district court reached the same conclusion as to the Aggrieved Individuals. Id. It explained that, although 8 U.S.C. § 1367(a)(2) barred U-visa discovery from the EEOC pertaining to the Aggrieved Individuals, “the Court otherwise finds that the Magistrate Judge did not err in balancing the conflicting interests as to those other claimants.” Id.
The district court acknowledged that it previously “affirmed an order in this very case holding that immigration status alone is not sufficiently relevant to overcome the in terrorem effect,” and explained that the magistrate judge’s January 24 order reiterated that holding. ROA.13048 (RE Tab 5), ROA.13051 (RE Tab 5). Nevertheless, the district court minimized the in terrorem effect from U-visa discovery. The district court discounted the notion that employees would fear retaliatory termination of themselves or family members, stating that “none of the Individual Plaintiffs remain employed with Koch Foods.” ROA.13052 (RE Tab 5). In a footnote, it applied the same reasoning to the Aggrieved Individuals, although simultaneously acknowledging that “it appears that a small number [of Aggrieved Individuals] remain employed [at Koch Foods].” ROA.13052 (RE Tab 5). Also, echoing the magistrate judge, the district court downplayed the fear of reports to immigration enforcement, stating that “[any] claimants who have applied for U Visas based on the abuse allegations have already revealed to federal immigration and other officials that they are not or were not authorized to be in the United States.” ROA.13052 (RE Tab 5). Last, the district court stated that the in terrorem effect could be addressed through a protective order. ROA.13053 (RE Tab 5).
Finally, the district court compelled the Individual Plaintiffs to respond to Koch Foods’ interrogatories and requests for production. Id. Koch Foods’ interrogatories asked the Individual Plaintiffs, among other things, to describe efforts—if any—to obtain U-visas, including for family members; to state whether they had received a U-visa; and to identify, for any U-visa applications submitted, the grounds for the application and the certifying government agency. ROA.4090-92 (RE Tab 5). The district court permitted the Individual Plaintiffs to limit their responses to “information regarding efforts to obtain U Visas … that arose out of the allegations in this civil action against Koch Foods.” ROA.13051 (RE Tab 5).
The September 22 order directed the Individual Plaintiffs to produce documents including specific sections of U-visa application forms—if any—“related to the allegations in this case,” plus “any additional submissions and any related communications” associated with the disclosed portions of the forms. ROA.13053-54 (RE Tab 5). A U-visa applicant submits up to three forms to United States Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security (DHS): Form I-918, Petition for U Nonimmigrant Status (“Form I-918”), the U-visa application itself; Form I-918 Supplement A, Petition for Qualifying Family Member of U-1 Recipient (“Supplement A”), the application for derivative U-visas for family members (if applicable); and Form I-918 Supplement B, U Nonimmigrant Status Certification (“Supplement B”), the law enforcement certification. ROA.13124-39, ROA.13143-45. The district court ordered disclosure of certain sections of these forms that reveal highly sensitive information, including the applicant’s country of citizenship, the place and date of the applicant’s last entry into the United States, whether the applicant’s U-visa application is pending, and details about any family members for whom the applicant sought U-visas. ROA.13053 (RE Tab 5), ROA.13124-25 (RE Tab 12), ROA.13130-32 (RE Tab 12), ROA.13139 (RE Tab 12), ROA.13143-45 (RE Tab 12). The district court allowed redaction of some sections, including one section of Form I-918 requesting the applicant’s current immigration status. ROA.13053 (RE Tab 5).
The EEOC, the Individual Plaintiffs, and Koch Foods attempted to draft a joint proposed protective order in accordance with the district court’s September 22 order, but the parties disagreed about the scope of that order. The parties agreed that the September 22 order compelled the Individual Plaintiffs to respond in part to Koch Foods’ already-propounded written discovery requests seeking U-visa discovery. ROA.13083. But the EEOC and the Individual Plaintiffs asked the district court to clarify whether it also intended to permit (1) additional U-visa discovery from the Individual Plaintiffs beyond Koch Foods’ already-propounded written discovery requests, including repeat depositions; and (2) new U-visa discovery directed at Aggrieved Individuals who were not Individual Plaintiffs. ROA.13079-80.
On October 29, 2014, the district court entered an order clarifying that Koch Foods could seek new U-visa discovery from the Aggrieved Individuals of the same scope allowed in the September 22 order, through means other than discovery propounded on the EEOC. ROA.13100 (RE Tab 6). That is, the district court authorized future discovery from the Aggrieved Individuals including the very same sections of the U-visa application forms that it ordered the Individual Plaintiffs to produce. Although the court recognized that “the [ ] aggrieved individuals present varying fact patterns,” it repeated its reasoning in the September 22 order, recapitulating the three footnotes in which it concluded that Koch Foods could obtain U-visa discovery from the Aggrieved Individuals. ROA.13100 (RE Tab 6). The district court further clarified that Koch Foods could seek additional U-visa discovery from the Individual Plaintiffs. ROA.13101 (RE Tab 6).
At the same time they requested clarification, the EEOC and the Individual Plaintiffs also sought a protective order in accordance with the September 22 order. The EEOC and the Individual Plaintiffs proposed two measures to address the in terrorem effect of U-visa discovery: (1) prohibiting Koch Foods itself from receiving U-visa information and limiting disclosure to Koch Foods’ attorneys only; and (2) strictly confining use of U-visa information to this lawsuit alone. ROA.13056.
On December 8, 2014, the magistrate judge entered a protective order that did not incorporate these proposed provisions. The December 8 order allowed Koch Foods itself (not just its attorneys) access to U-visa information. ROA.13217 (RE Tab 8). The order “prohibited [Koch Foods] from using [U-visa information] in the course of its business, including hiring, firing, or discharge decisions” but allowed such use when “otherwise required by applicable law.” ROA.13217 (RE Tab 8). And although the order generally prohibited Koch Foods from “reporting or sharing [U-visa information] with immigration authorities or other law enforcement officials,” it authorized an exception where “failure to do so would constitute a violation of criminal law.” ROA.13216 (RE Tab 8).
This appeal followed. As explained in the Statement of Jurisdiction, supra at 1, the Commission filed a motion to certify the district court’s September 22 and October 29 orders for interlocutory appeal under 28 U.S.C. § 1292(b), the district court certified the orders on June 30, 2015, and this Court granted the EEOC’s petition and Koch Foods’ cross-petition on August 12, 2015. ROA.13224-26, ROA.13355-62 (RE Tab 3), ROA.13363-64 (RE Tab 4).
This Court should reverse the district court’s rulings authorizing U-visa discovery from the Aggrieved Individuals. The district court abused its discretion by failing to bar U-visa discovery outright, by erroneously determining that U-visa discovery is relevant, and by improperly balancing factors that weigh against U-visa discovery.
First, although the district court correctly barred U-visa discovery from the EEOC under 8 U.S.C. § 1367(a)(2) and 8 C.F.R. § 214.14, it should have also prohibited such discovery from the Individual Plaintiffs and Aggrieved Individuals. Allowing U-visa discovery from the Individual Plaintiffs and Aggrieved Individuals would circumvent the prohibition against discovery from the EEOC, enabling Koch Foods to obtain discovery that is otherwise barred. Also, the district court erred in concluding that 8 U.S.C. § 1367(a)(2) does not apply to individual U-visa applicants. It failed to consider the statute as a whole, particularly 8 U.S.C. § 1367(b)(4)’s provision that beneficiaries may waive U-visa confidentiality. Finally, authorizing U-visa discovery from the Individual Plaintiffs and Aggrieved Individuals runs afoul of Congress’ purpose in establishing U-visas and the U-visa confidentiality provisions: to encourage immigrant crime victims to report crimes, and to provide protections for those victims. Permitting U-visa discovery contravenes that purpose—hindering rather than facilitating law enforcement efforts—because the risk of U-visa disclosure will deter crime victims from coming forward.
Second, the district court erred in deeming U-visa discovery relevant. Immigration status information is irrelevant to Title VII liability, and U-visa discovery would reveal status. The district court’s rationales for departing from this general principle were flawed and based on an erroneous view of the facts. The mere fact that the EEOC is a certifying agency does not support Koch Foods’ speculative theory of a conspiracy between the EEOC and the Aggrieved Individuals, especially because USCIS—not the EEOC—is the agency with authority to approve U-visas. Also, the district court misunderstood the nature of this litigation, and EEOC litigation in general, by giving weight to a supposed “spike” in the number of Aggrieved Individuals.
Third, the district court failed properly to weigh factors militating against U-visa discovery. The district court ignored the U-visa confidentiality mandate provided under 8 U.S.C. § 1367(a)(2) in this inquiry, although Congress’ intent to encourage reporting of crimes is an important factor weighing against disclosure. Also, in approving U-visa discovery to assess credibility, the district court overlooked the statutory and regulatory regime assigning U-visa credibility determinations to the certifying agency and USCIS. The district court also discounted other reasons to deny U-visa discovery to assess credibility—such as the fact that Koch Foods itself believed employees’ allegations, and the availability of other means to gauge the Individual Plaintiffs’ and Aggrieved Individuals’ credibility. Last, the district court’s analysis of the in terrorem effect was flawed, and only cursory as applied to the Aggrieved Individuals.
Finally, this court should reverse the district court’s discovery rulings because they affect the EEOC’s substantial rights. Allowing U-visa discovery will significantly hinder the EEOC’s ability to carry out enforcement efforts seeking relief for immigrant workers. Also, permitting voluminous new discovery at this stage of the discovery period would impose considerable costs on the EEOC and the Aggrieved Individuals.
This Court reviews a district court’s discovery rulings for abuse of discretion. Green v. Life Ins. Co. of N. Am., 754 F.3d 324, 329 (5th Cir. 2014). A district court abuses its discretion when it “(1) relies on clearly erroneous factual findings; (2) relies on erroneous conclusions of law; or (3) misapplies the law to the facts.” In re: Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008) (en banc); see also id. (“[A] [district] court must exercise its discretion within the bounds set by relevant statutes.”); Green, 754 F.3d at 329 (a discovery ruling “based on an erroneous view of the law” is an abuse of discretion). When a district court’s discretionary ruling is based on a balancing inquiry, it abuses its discretion “‘when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.’” Volkswagen, 545 F.3d at 310 n.4 (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)); see also Dell Comput. Corp. v. Rodriguez, 390 F.3d 377, 385 n.14 (5th Cir. 2004) (explaining that this Court “may [ ] set aside” a ruling based on a balancing inquiry ‘if it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors’”) (quoting United States v. Walker, 772 F.2d 1172, 1176 n.9 (5th Cir. 1985)).
In reviewing discovery rulings, this Court reviews underlying conclusions of law de novo and findings of fact for clear error. Moore v. CITGO Ref. & Chems. Co., L.P., 735 F.3d 309, 315 (5th Cir. 2013). Finally, this Court “will only vacate a court’s judgment [on a discovery issue] if it affected the substantial rights of the” party challenging the ruling. Green, 754 F.3d at 329.
As the district court correctly determined, 8 U.S.C. § 1367(a)(2) and 8 C.F.R. § 214.14 (collectively, “Section 1367(a)(2)’s confidentiality mandate”) preclude U-visa discovery from the EEOC. However, the district court erred in failing to conclude that the confidentiality mandate also barred U-visa discovery from the Individual Plaintiffs and Aggrieved Individuals. Congress created U-visas and enacted Section 1367(a)(2)’s confidentiality mandate to strengthen law enforcement efforts to investigate and prosecute crimes that impact immigrants, by encouraging immigrant crime victims to report criminal activity and assist law enforcement agencies. Given the goals of the U-visa program, and the language and purpose of Section 1367(a)(2)’s confidentiality mandate, the district court should have barred U-visa discovery from the Aggrieved Individuals outright.
The U-visa program allows immigrant victims of certain crimes to seek temporary immigration status for themselves and family members.[6] Congress established the U-visa through the Violence Against Women Act of 2000, as part of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464, § 1513. Recognizing that immigrants without legal status were reluctant to report crimes or participate in investigations, Congress created the U-visa to “strengthen the ability of law enforcement agencies to detect, investigate, and prosecute” certain crimes “while offering protection to victims of such offenses.” Id. § 1513(a)(2)(A). Congress emphasized that U-visas would “facilitate the reporting of crimes to law enforcement officials by trafficked, exploited, victimized, and abused aliens who are not in lawful immigration status” and would “give[] law enforcement officials a means to regularize the status of cooperating individuals during investigations or prosecutions.” Id.
The U-visa eligibility requirements are tied to Congress’ goal of strengthening law enforcement efforts. A U-visa applicant must suffer “substantial physical or mental abuse” because he or she was the victim of certain “qualifying criminal activity,” must possess information about the criminal activity, and must be helpful to federal, state, or local law enforcement. 8 U.S.C. §§ 1101(a)(15)(U)(i)(I)-(III) & (a)(15)(U)(iii); 8 C.F.R. §§ 214.14(a)(9) & (b)(1). To receive a U-visa, the applicant must also be admissible to the United States or receive a waiver of inadmissibility from USCIS. See 8 U.S.C. § 1182(d)(14); 8 C.F.R. §§ 212.17 & 214.14(c)(2)(iv).[7]
In defining the U-visa eligibility standards, Congress focused on victims of criminal offenses that were considered “serious crimes that tend to target vulnerable foreign individuals without immigration status.” H.R. Rep. No. 106-939, at 115 (2000) (Conf. Rep.). “Qualifying criminal activity” encompasses several enumerated offenses—including trafficking, sexual assault, abusive sexual contact, sexual exploitation, involuntary servitude, extortion, murder, felonious assault, witness tampering and obstruction of justice—“substantially similar” offenses, and conspiracy or solicitation to commit those offenses. 8 U.S.C. § 1101(a)(15)(U)(iii); 8 C.F.R. § 214.14(a)(9).
Because U-visa eligibility depends on helpfulness to law enforcement, a law enforcement certification, Supplement B, is a required component of the U-visa application. 8 U.S.C. § 1184(p)(1); see supra at 20-21 (describing U-visa application forms). Supplement B certifies a law enforcement agency’s determination that the applicant was the victim of criminal activity, that the applicant possesses information about that activity, and that the applicant has been helpful, is being helpful, or is likely to be helpful to the agency’s detection, investigation, or prosecution. 8 U.S.C. § 1184(p)(1); 8 C.F.R. §§ 214.14(a)(5), (a)(12), & (c)(2)(i); see also ROA.13143-45 (RE Tab 12). Certifying law enforcement agencies include federal and state law enforcement agencies, such as the EEOC, judges, prosecutors, and other authorities. 8 U.S.C. § 1184(p)(1); 8 C.F.R. § 214.14(a)(2).
Although a law enforcement agency completes the preliminary certification, Congress gave DHS authority to determine whether an applicant meets the U-visa eligibility requirements. 8 U.S.C. § 1101(a)(15)(U)(i). USCIS, a component of DHS, “has sole jurisdiction over all [U-visa] applications,” 8 C.F.R. § 214.14(c)(1), and conducts de novo review of the application and all evidence submitted in support. Id. § 214.14(c)(4). Moreover, “USCIS will determine, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence—including Form I-918, Supplement B,” the law enforcement certification—and “may investigate any aspect of the petition.” Id.
Congress also realized that the goals of the U-visa program could be undermined if applications were not confidential. Therefore, Congress provided strong confidentiality provisions that preclude disclosure of U-visa applications. 8 U.S.C. § 1367(a)(2). These protections were “designed to ensure that abusers and criminals cannot use the immigration system against their victims.” H.R. Rep. No. 109-233, at 120 (2005); 151 Cong. Rec. E2605, 2005 WL 3453763, at *E2607 (Dec. 17, 2005) (statement of Rep. Conyers). Accordingly, 8 U.S.C. § 1367(a)(2) prohibits the Departments of Justice, Homeland Security, and State from “permitting use by or disclosure to anyone … of any information which relates to an alien who is the beneficiary of an application for [a U-visa],” subject to narrow exceptions. In 2013 amendments, Congress underscored that even disclosures for legitimate law enforcement purposes and national security purposes must be handled “in a manner that protects the confidentiality of such information.” Pub. L. No. 113-4, 127 Stat. 54, §§ 810(a)(2)(C) & (a)(4) (2013); 8 U.S.C. §§ 1367(b)(2) & (b)(8). And Congress emphasized the importance of U-visa confidentiality by authorizing disciplinary action and monetary penalties for those who permit disclosure. 8 U.S.C. § 1367(c).
Section 1367(a)(2)’s prohibitions apply equally to the EEOC by virtue of regulation. The DHS regulation at 8 C.F.R. § 214.14(e)(1) echoes 8 U.S.C. § 1367(a)(2), specifying that “[t]he use or disclosure … of any information relating to the beneficiary of a pending or approved petition for U nonimmigrant status is prohibited.” Consistent with the statutory and regulatory restrictions on the release of U-visa information, 8 C.F.R. § 214.14(e)(2) specifically provides that “[a]gencies receiving information under this section … are bound by the confidentiality provisions and other restrictions set out in 8 U.S.C. [ ] 1367.” As an agency authorized by 8 C.F.R. § 214.14(a)(2) to provide law enforcement certifications for U-visa applications, the EEOC is bound by the confidentiality requirements of 8 U.S.C. § 1367(a)(2).
The court abused its discretion in determining—in a footnote, without independent analysis—that Section 1367(a)(2)’s confidentiality mandate does not bar U-visa discovery from the Aggrieved Individuals. See ROA.13047-48 (RE Tab 5). Section 1367(a)(2)’s confidentiality mandate operates as a privilege, see Hawke v. U.S. Dep’t of Homeland Sec., No. C-07-03456 RMW, 2008 WL 4460241, at *5 (N.D. Cal. Sept. 29, 2008), and privileged matters are exempt from discovery even if relevant. Fed. R. Civ. P. 26(b)(1). Alternatively, Section 1367(a)(2)’s confidentiality mandate warrants barring U-visa discovery because it establishes “good cause” to “forbid[] … discovery” “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). Whether Section 1367(a)(2)’s confidentiality mandate bars U-visa discovery from the Aggrieved Individuals is a legal issue that should be reviewed de novo. Moore, 735 F.3d at 315.
Allowing U-visa discovery from the Individual Plaintiffs and Aggrieved Individuals would enable Koch Foods to circumvent the EEOC’s confidentiality privilege under Section 1367(a)(2). As the district court correctly concluded, ROA.13046-47 (RE Tab 5), 8 U.S.C. § 1367(a)(2) and 8 C.F.R. § 214.14 preclude U-visa discovery from the EEOC. Section 1367(a)(2) plainly encompasses civil discovery because it bars “disclosure to anyone … of any information which relates to an alien who is the beneficiary of a [U-visa application],” with narrow exceptions that do not apply here. 8 U.S.C. § 1367(a)(2) (emphasis added). In this EEOC enforcement action, this Court should extend that prohibition to the Aggrieved Individuals, including the Individual Plaintiffs. The Commission is a plaintiff in this lawsuit, and it brought suit both “to vindicate the public interest in preventing employment discrimination” and “for the benefit of the [Aggrieved Individuals].” Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 326 (1980); see also EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002) (explaining that Title VII “clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake”). Permitting U-visa discovery from the individuals for whom the EEOC seeks relief would constitute an end-run around the prohibition on U-visa discovery from the EEOC.
In any case, the district court incorrectly determined that Section 1367(a)(2)’s confidentiality mandate does not preclude discovery from individual U-visa applicants. The district court stated in a footnote that Section 1367(a)(2)’s confidentiality mandate did not bar U-visa discovery from the Aggrieved Individuals, without offering any analysis. ROA.13047-48 (RE Tab). As to the Individual Plaintiffs, the district court asserted that the confidentiality mandate “does not prohibit discovery directly from an applicant who is a party in the civil context.” ROA.13046 (RE Tab). The district court misunderstood the statute.
The district court’s restrictive reading of Section 1367(a)(2)’s confidentiality mandate violates basic canons of statutory construction by failing to give full meaning to all the statute’s provisions. When 8 U.S.C. § 1367(a)(2) is read together with another section of the statute, 8 U.S.C. § 1367(b)(4), it is clear that U-visa applicants themselves may assert confidentiality protections. See, e.g., Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 131 S. Ct. 1325, 1330 (2011) (statutory interpretation “depends upon reading the whole statutory text”) (citation omitted). Section 1367(b)(4) provides that, under certain conditions, a beneficiary of the statute may waive the confidentiality requirements. By giving individuals who seek U-visas the ability to waive confidentiality, Congress necessarily gave them the ability to assert confidentiality. Any other reading would render the provision superfluous. Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 399 (5th Cir. 2014) (“‘[O]ne of the most basic interpretative canons[] [is] that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.’”) (quoting Corley v. United States, 556 U.S. 303, 314 (2009)).
Finally, the district court should have prohibited U-visa discovery from the Aggrieved Individuals because such discovery subverts Congress’ purpose in establishing U-visas and the confidentiality protections. As explained supra at 29-33, Congress created U-visas to encourage immigrants without status to come forward and provide law enforcement with information about certain crimes. And Congress intended Section 1367(a)(2)’s confidentiality mandate to protect U-visa applicants from the perpetrators of those crimes, given the likelihood that perpetrators would use sensitive immigration information to harm their victims. See Demaj v. Sakaj, No. 3:09cv255(JGM), 2012 WL 476168, at *5 (D. Conn. Feb. 14, 2012) (“[T]he purpose of [8 U.S.C. § 1367] is to protect the confidentiality of [] applications by preventing disclosure of [U-visa] documents to alleged criminals[.]”); Hawke, 2008 WL 4460241, at *7 (explaining that a “primary purpose[]” of Section 1367(a)(2)’s confidentiality mandate is “prohibit[ing] disclosure of application materials to the accused [perpetrator]”); People v. Bartlett, No. 5860/11, 2013 WL 3199088, at *2 (N.Y. Sup. Ct. 2013) (“Congress’ clear intent [in 8 U.S.C. § 1367] is to keep [U-visa] applications confidential … in order to encourage undocumented [victims] to come forward and report abuse.”).
Allowing civil discovery of U-visa applications from applicants themselves would run afoul of Congress’ purpose. See Demaj, 2012 WL 476168, at *5-6 (denying motion to compel U-visa documents from visa applicant, explaining that disclosure of U-visa applications to assess applicant’s credibility “runs contrary to the intent of the protections afforded by 8 U.S.C. § 1367”). Here, the EEOC alleges that Koch Foods personnel perpetrated acts of sexual assault, sexual abuse, physical assault, and extortion against numerous Aggrieved Individuals, and that Koch Foods tolerated this conduct as its standard operating procedure. Even if U-visa information were disclosed only to Koch Foods rather than the harassers themselves, workers who applied for U-visas—especially those who remain employed at the company—would reasonably fear that Koch Foods would use the information to retaliate. Granting employers that tolerate severe mistreatment of employees access to federally protected U-visa information would punish victims of workplace criminal offenses rather than protect them.
Moreover, permitting disclosure of U-visa applications in this and other civil rights cases would subvert the purpose of the U-visa program and impair law enforcement efforts to investigate certain crimes. If U-visa applications were discoverable in civil rights cases, the pursuit of civil rights would be turned into a venue for trapping undocumented workers. After being encouraged to assist law enforcement in exchange for confidential information, victims would find that they are forced to disclose that same information divulged only under the expectation of confidentiality. The possibility of disclosure would deter victims from coming forward to report crimes, undermining the core purpose of the U-visa program. And allowing U-visa discovery here would have ramifications far beyond enforcement of workers’ civil rights. EEOC is only one of numerous law enforcement agencies that may certify U-visas, and permitting U-visa discovery will impair a wide range of civil and criminal investigations and prosecutions— because victims will fear coming forward.
Under the Federal Rules of Civil Procedure, the scope of permissible discovery is limited by relevance. Fed. R. Civ. P. 26(b)(1). In finding U-visa discovery relevant, the district court abused its discretion because it departed from applicable law generally holding that immigration status is irrelevant to Title VII liability and because it relied on flawed reasoning and an erroneous view of the facts. Volkswagen, 545 F.3d at 310; Green, 754 F.3d at 329.
Title VII protects workers regardless of immigration status; the statute was “‘intended by Congress to run to aliens, whether documented or not, who are employed within the United States.’” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064 n.4 (9th Cir. 2004) (quoting EEOC v. Tortilleria “La Mejor”, 758 F. Supp. 585, 590 (E.D. Cal. 1991)); Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95 (1973) (explaining that Title VII protects “any individual,” regardless of citizenship); cf. Reyes, 814 F.2d at 170 (observing that the Fair Labor Standards Act applies to “citizens and aliens alike and whether the alien is documented or undocumented is irrelevant”). Accordingly, immigration status “is not relevant to determining whether [an employer] has violated Title VII,” Rivera, 364 F.3d at 1069-70, and numerous courts have blocked immigration status discovery as irrelevant to Title VII liability. E.g., EEOC v. Rest. Co., 448 F. Supp. 2d 1085, 1086-88 (D. Minn. 2006); EEOC v. Bice of Chi., 229 F.R.D. 581, 583 (N.D. Ill. 2005); De La Rosa v. N. Harvest Furniture, 210 F.R.D. 237, 239 (C.D. Ill. 2002); see also ROA.1906 (magistrate judge) (deeming Koch Foods’ arguments that immigration status was relevant “tenuous”).
Here, the district court incorrectly found U-visa discovery relevant although it would reveal immigration status. See David v. Signal Int’l, L.L.C., 735 F. Supp. 2d 440, 447 (E.D. La. 2010) (“[P]roduction of … U-visa applications themselves would necessarily result in an inquiry into [applicants’] current immigration status[.]”); see also supra at 20-21 (summarizing discovery the district court authorized). Disclosing that an individual holds a U-visa would reveal status, because U-visa status itself is an immigration status. See 8 U.S.C. § 1101(a)(15)(U)(i) (describing U-visa petitions as “petition[s] for status”); 8 C.F.R. § 214.14(b) (discussing eligibility for “U-1 nonimmigrant status”). Disclosing that an individual applied for a U-visa or sought law enforcement certification would reveal, at a minimum, lack of permanent status, because an individual with permanent status would not pursue temporary status. Where an application is pending, disclosure would reveal that the applicant currently lacks status. Also, the portions of the U-visa applications subject to discovery include other information that may reveal status, such as country of citizenship and place and date of last entry into the United States. See supra at 20-21. Finally, U-visa discovery would reveal family members’ status where an applicant sought a derivative U-visa.
In departing from the general principle that immigration status is irrelevant to Title VII liability, the district court gave credence to Koch Foods’ conspiracy theory by assuming that the EEOC’s status as a certifying agency established relevance and incorrectly concluding that there was a “spike in claims” after the EEOC filed suit. First, the district court invoked the EEOC’s status as a certifying agency in finding relevance. See ROA.13050 (RE Tab 5) (citing the “EEOC[’s] [ ] authority to issue law-enforcement certifications necessary to obtain U-visa eligibility”). But a certifying agency’s involvement in a given lawsuit does not demonstrate that U-visas are relevant. Such reasoning could provide a basis for U-visa discovery in a broad range of civil suits, because numerous entities other than the EEOC may provide certification. And it could justify U-visa discovery in any Commission lawsuit seeking relief for immigrant workers and involving allegations that overlap with the U-visa qualifying crimes. This would significantly hinder the EEOC’s ability to carry out its enforcement efforts. See infra at 63-64.
Furthermore, in emphasizing the EEOC’s status as a certifying agency, the district court appeared to accept Koch Foods’ suggestion that the Aggrieved Individuals may have conspired to use the EEOC process as “a scheme to obtain legal status in this country.” ROA.12155 (RE Tab 7) (magistrate judge). But Koch Foods’ conspiracy theory is based on “mere conjecture and speculation,” ROA.12155 (RE Tab 7), and “Rule 26(b) ‘has never been a license to engage in an unwieldy, burdensome, and speculative fishing expedition.’” Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011) (quoting Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1163 (10th Cir. 2010)).
Also, because USCIS—not the EEOC—grants U-visa applications, such a conspiracy theory makes no sense. The EEOC’s role, and that of other law enforcement agencies, is limited to certifying the applicant’s status as a victim, knowledge about the qualifying crime, and helpfulness in the detection, investigation, or prosecution of the crime. See supra at 31-32. The law enforcement certification must specifically attest that the certifying agency “ha[s] made, and will make no promises regarding the [applicant’s] ability to obtain a visa from [USCIS], based upon this certification.” ROA.13145 (RE Tab 12). And Koch Foods implies—incorrectly—that U-visas are easily obtained. In fact, applicants face a tough eligibility standard and a complex application process. See supra at 30-32. Moreover, there is an annual cap of 10,000 U-visas per year; eligible applicants remain on a waiting list until a U-visa is available. 8 U.S.C. § 1184(p)(2)(A); 8 C.F.R. § 214.14(d).
Second, in presuming that the number of Aggrieved Individuals “exponential[ly] jump[ed],” the district court relied on an erroneous view of the facts because it misunderstood the nature of this litigation and EEOC enforcement suits in general. The district court described this lawsuit as involving a “spike in claims,” because eight Individual Plaintiffs originally filed suit, while the EEOC’s Third Amended Complaint named 115 Aggrieved Individuals. See ROA.13049-50 (RE Tab 5); see also ROA.1236-39 (EEOC’s Second Amended Complaint, filed May 31, 2012; naming 117 Aggrieved Individuals). But this characterization ignores the fact that the EEOC’s enforcement efforts began well before filing suit—and that Koch Foods was long aware that the Commission sought relief for classes of Hispanic and female employees. After conducting an investigation of charges alleging hostile work environment and retaliation by Koch Foods, the EEOC issued cause determinations in September 2010 for several Charging Parties and classes of individuals subjected to hostile work environment based on sex, race, and/or national origin. ROA.884-947. Then, between September 2010 and February 2011, the EEOC attempted to resolve the Title VII charges via conciliation with Koch Foods, and the district court stayed the individual employees’ suit pending the EEOC’s conciliation efforts. ROA.193, ROA.200, ROA.210, ROA.320-21, ROA.7323 (RE Tab 10). See Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 359-60 (1977) (describing the Commission’s “multistep enforcement procedure,” including charge filing, notice to the employer, investigation, cause determination, and conciliation); see also 42 U.S.C. § 2000e-5(b) (setting out administrative process).
Moreover, that the EEOC has now named 115 Aggrieved Individuals does not demonstrate a “spike in claims.” The EEOC is authorized to seek pre-suit relief for a class of employees without conducting individualized investigations, determinations, or conciliations. See, e.g., Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012), cert. denied sub nom. Cintas Corp. v. EEOC, 134 S. Ct. 92 (2013) (approving EEOC class-wide investigation and conciliation). Therefore, during its pre-suit investigation and at the conciliation stage, the EEOC need not identify individual claimants or enumerate precisely the classes of Hispanic and female employees. See Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1648 (2015) (notice to employer at conciliation stage need only describe the “class of employees” who “have suffered”); EEOC v. Sterling Jewelers, Inc., __ F.3d __, 2015 WL 5233636, at *6 (2d Cir. Sept. 9, 2015) (holding that notice of nationwide class sufficed where the EEOC received and investigated charges in multiple states). And any increase in the number of claimants after the EEOC filed suit is not unusual, because the EEOC may utilize discovery to identify additional class members after a case is filed. Given this procedural backdrop, and the nature of EEOC class enforcement efforts, the district court erred in concluding that a supposed “spike” in the number Aggrieved Individuals supported Koch Foods’ relevance argument.
Even if Section 1367(a)(2)’s confidentiality mandate does not outright preclude U-visa discovery from Aggrieved Individuals, and even if the discovery sought were relevant, several countervailing factors far outweigh Koch Foods’ claimed need for U-visa discovery and the discovery’s asserted relevance. As Federal Rule of Civil Procedure 26(b)(2) makes clear:
[A district] court must limit … discovery … if it determines that … the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive … [or where] the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C)(i), (iii) (emphasis added); see also Crosby, 647 F.3d at 264 (same). Moreover, a district court “may, for good cause,” “forbid[] … discovery” entirely or “forbid[] inquiry into certain matters” “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).
The district court abused its discretion by failing to consider, improperly weighing, or improperly applying countervailing factors against Koch Foods’ asserted need for U-visa discovery. Volkswagen, 545 F.3d at 310 n.4. First, the district court failed to consider the congressional purpose underlying Section 1367(a)(2)’s confidentiality mandate. Second, the district court overlooked the statutory and regulatory regime protecting against misrepresentations in U-visa applications, particularly the fact that USCIS acts as ultimate arbiter of applicants’ credibility. In ignoring these two factors, the district court “relie[d] on erroneous conclusions of law” and failed to “exercise its discretion within the bounds set by relevant statutes.”Volkswagen, 545 at 311. Therefore, de novo review is warranted. Moore, 735 F.3d at 315. Also, the district court failed to give appropriate weight to other factors that militate against discovery of U-visa to test credibility. Finally, although the district court considered the in terrorem effect attending U-visa discovery, its analysis was cursory and based on an erroneous view of the facts.
This Court should reverse the district court’s discovery rulings because any of these factors, given appropriate weight, justify barring U-visa discovery. In combination, these countervailing factors significantly outweigh Koch Foods’ asserted need for U-visa discovery even if this Court deems such discovery relevant.
As explained supra at 29-33, Congress created U-visas to encourage undocumented immigrants to report certain crimes to law enforcement agencies. Congress intended Section 1367(a)(2)’s confidentiality mandate to bolster the U-visa program’s goal of supporting law enforcement efforts. In doing so, Congress reasoned that undocumented immigrants would fear coming forward without confidentiality assurances—particularly because disclosure of U-visa applications could expose them to further abuse by the very perpetrators of the criminal activity they reported.
Even if Section 1367(a)(2)’s confidentiality mandate does not bar discovery from the Aggrieved Individuals outright, as argued supra at 34-39, the district court should have considered the confidentiality mandate’s underlying purpose when assessing the likely harm of U-visa discovery. After the district court concluded that 8 U.S.C. §1367(a)(2) and 8 C.F.R. § 214.14 did not preclude discovery from the Individual Plaintiffs and the Aggrieved Individuals outright, it went on to weigh Koch Foods’ stated need for discovery against the likely harm attending U-visa discovery. ROA.13048-50 (RE Tab 5). But the district court did not even mention 8 U.S.C. §1367(a)(2) in its balancing analysis (and the magistrate judge failed to consider the statute at all). The district court addressed harm that could stem from U-visa discovery (although, as discussed infra at 57-62, its analysis was cursory and incomplete), but it did not discuss the specific harms of U-visa disclosure that spurred Congress to establish the confidentiality mandate.
The district court abused its discretion by neglecting to consider Section 1367(a)(2)’s confidentiality mandate in balancing the burdens of U-visa discovery against its benefits. To give full effect to congressional purpose, the district court should have considered how permitting U-visa discovery would impair law enforcement efforts in this suit and as a general matter, because allowing disclosure of U-visas would discourage undocumented immigrants from coming forward to report crimes. And the district court should have weighed the particular harms that may stem from disclosing U-visa applications to the perpetrators of reported crimes—in this case, Koch Foods—including the threat of new abuse by a perpetrator that has already targeted the victim. Had the district court considered Congress’ goals of bolstering law enforcement efforts and protecting U-visa materials from perpetrators, it should have determined that Congress’ intent to ensure U-visa confidentiality significantly outweighed Koch Foods’ asserted need for U-visa discovery. As explained supra at 37-39, permitting U-visa discovery will undermine the core purpose of the U-visa program, because the possibility of disclosure will deter immigrant victims from reporting criminal offenses to the EEOC and other law enforcement agencies.
Although the district court characterized Koch Foods’ justification for seeking U-visas as a “credibility argument,” ROA.13050 (RE Tab 5), it ignored the comprehensive statutory and regulatory regime that already provides measures for detecting and deterring misrepresentations in U-visa applications. The district court should have denied U-visa discovery in deference to this regime.
To begin, in order for an applicant to receive a U-visa, two governmental entities—the certifying agency and USCIS—must determine that the applicant credibly represented that he or she was the victim of qualifying criminal activity. As explained supra at 31-32, the certifying agency makes a preliminary determination of the applicant’s status as a victim, knowledge of criminal activity, and helpfulness. 8 U.S.C. § 1184(p)(1); 8 C.F.R. §§ 214.14(a)(12) & (c)(2)(i); see also 8 C.F.R. § 214.14(b)(2) (explaining that an applicant “must possess[] credible and reliable information establishing that he or she has knowledge of … qualifying criminal activity … [and] must possess specific facts regarding the criminal activity” in order to demonstrate U-visa eligibility) (emphasis added).
USCIS acts as the final arbiter of the applicant’s eligibility, exercising “sole jurisdiction,” and assessing de novo whether the applicant satisfied the U-visa standard. 8 C.F.R. §§ 214.14(c)(1) & (c)(4). Congress explicitly made DHS (of which USCIS is a component) responsible for determining U-visa eligibility, 8 U.S.C. § 1101(a)(15)(U)(i), and directed the agency to consider “any credible evidence relevant to the petition.” Id. § 1184(p)(4) (emphasis added). USCIS is not bound by the law enforcement agency’s determination, and assesses the evidentiary value of the certificate “in its sole discretion.” 8 C.F.R. § 214.14(c)(4). Furthermore, Section 1367(a)(2)’s confidentiality mandate, by protecting U-visa applications from disclosure, underscores that credibility determinations respecting applications are assigned to USCIS and the certifying agency—not to outsiders.
To further bolster this two-tiered review of applicants’ credibility, the regime also incorporates powerful penalties designed to deter applicants from making misrepresentations in U-visa applications. USCIS may revoke a U-visa application even if it has already been approved, if there was fraud in the petition, or if the certifying agency withdraws or disavows its certification. 8 C.F.R. §§ 214.14(h)(2)(i)(A) & (h)(2)(i)(C). And the U-visa regulations specifically provide that “nothing in this section prohibits USCIS from instituting removal proceedings … for misrepresentations of material facts in Form I-918 or Form I-918, Supplement A and supporting documentation.” Id. § 214.14(i). See also 8 U.S.C. § 1182(a)(6)(C)(i) (aliens who “seek[] to procure … a visa, other documentation, or admission into the United States” “by fraud or willfully misrepresenting a material act” are inadmissible).
The district court failed to consider this regime in weighing whether Koch Foods may obtain U-visa discovery to support its “credibility argument.” But it should have, because the statutory and regulatory regime squarely assigns U-visa credibility assessments to USCIS and certifying agencies. In light of this statutory and regulatory regime, permitting U-visa discovery presumes that the USCIS adjudicators who independently review U-visa applications and the law enforcements agents that issue certifications are inordinately susceptible to fraud—a proposition for which Koch Foods has not established a basis in fact. Also, by authorizing U-visa discovery to assess credibility, the district court’s order encroached on the prerogative of USCIS and the certifying agencies—particularly on USCIS’s role as the final arbiter. See Demaj v. Sakaj, No. 3:09 CV 255(JGM), 2013 WL 1131418, at *16 (D. Conn. March 18, 2013) (emphasizing that USCIS has “sole discretion” to determine U-visa eligibility and assess “evidentiary value” of U-visa applications; explaining that the court viewed unfavorably one party’s assertion that the other party “has attempted to improve her litigation position by obtaining a U-Visa through fraud”); Demaj, 2012 WL 476168, at *6 (barring U-visa discovery because it would interfere with the applicant’s immigration proceeding, and explaining that U-visa discovery would “undermine the decision of DHS by challenging the veracity of [the applicant’s] statements, upon which both DHS and law enforcement relied”).
In addition to the statutory and regulatory regime, the district court discounted or ignored other reasons to reject Koch Foods’ “credibility argument” for U-visa discovery. For one, Koch Foods’ credibility justification is tenuous because the company itself found employees’ allegations of harassment credible. That is, Koch Foods relied on employee reports, particularly of extortion and physical abuse, in terminating supervisors for misconduct. See ROA.5966-67, ROA.6097-98, ROA.6112-21. By ignoring Koch Foods’ own determination that employees’ harassment allegations were believable, the district court “relie[d] on clearly erroneous factual findings” in permitting discovery to test credibility. Volkswagen, 545 F.3d at 408.
Moreover, the U-visa discovery Koch Foods sought would not shed light on the Individual Plaintiffs’ and Aggrieved Individuals’ credibility. The fact of a U-visa application does not reveal whether the applicant falsified the allegations on which the EEOC’s Title VII claims are based, because the standards for proving Title VII violations differ from the standard for receiving a U-visa. See supra at 30 (discussing U-visa eligibility standard). U-visas are granted to victims of certain crimes, not to victims of alleged employment discrimination. 8 C.F.R. § 214.14(b)(1) (applicant must suffer “substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity”). Even if U-visa discovery were marginally probative of the Individual Plaintiffs’ and Aggrieved Individuals’ credibility, Koch Foods’ goal of testing credibility “does not by itself warrant unlimited inquiry into the subject of immigration status when such examination would impose an undue burden on [] enforcement of employment discrimination laws.” Avila-Blum v. Casa de Cambia Delgado, Inc., 236 F.R.D. 190, 192 (S.D.N.Y. 2006); see also Fed. R. Civ. P. 26(b)(2)(C)(iii) (court must limit discovery if it determines “the burden … outweighs its likely benefit”); Fed R. Civ. P. 26(c) (discovery may be limited to protect against “undue burden”).
Also, that Koch Foods may attempt to impeach Aggrieved Individuals’ credibility in other ways further militates against discovery. See Fed. R. Civ. P. 26(b)(2)(C)(i) (court must limit discovery if it determines it “can be obtained from some other source that is more convenient [or] less burdensome”). There is no reason why typical procedures to evaluate credibility are not adequate here. See Avila-Blum, 236 F.R.D. at 192 (explaining that credibility “may be tested in a variety of ways without imposing an undue burden on a party”). If Koch Foods wishes to show that the Individual Plaintiffs and Aggrieved Individuals have fabricated their allegations, it may highlight, for example, prior inconsistent statements, testimony that conflicts with other witnesses’ testimony, or lack of corroborating evidence. Koch Foods has already deposed all of the Individual Plaintiffs and dozens of Aggrieved Individuals about the allegations underlying this case, and had the opportunity to pose questions about their reasons for approaching the EEOC and participating in this lawsuit. See, e.g., ROA.5719-25, ROA.5729-30, ROA.5743-44, ROA.5780-81. Therefore, Koch Foods can evaluate credibility through legitimate means that do not encroach on the statutory and regulatory regime designed to deter and detect misrepresentations in U-visa applications.
In concluding that Koch Foods’ need for U-visa discovery outweighed the in terrorem effect of such discovery, the district court only cursorily analyzed the effect on the Aggrieved Individuals, minimized the harm of U-visa disclosure, and ignored the impact of disclosure on the public interest. Courts have long recognized that permitting civil discovery of immigration-related information in employment suits creates a chilling effect—the in terrorem effect—that deters workers from asserting their rights. Rivera, 364 F.3d at 1064-65. As this Court has emphasized, immigration-related discovery “could inhibit [workers] in pursuing their rights” by triggering “collateral wholly unrelated consequences” and causing “embarrassment and inquiry into their private lives.” Reyes, 814 F.2d at 170. That is, immigrant workers may fear removal, loss of employment, reports to law enforcement, or other consequences if their immigration status is revealed, and therefore opt not to pursue their workplace rights. See Rivera, 364 F.3d at 1064-65. The in terrorem effect justifies barring immigration-related discovery because it is burdensome and oppressive to individuals, and because it “unacceptably burden[s] the public interest.” Rivera, 364 F.3d at 1065; see Fed. R. Civ. P. 26(b)(2)(C)(iii) & (c)(1).
Courts have held that the in terrorem effect outweighs the need for immigration-related discovery when faced with credibility arguments like the one that Koch Foods advanced here. E.g., Sandoval v. Am. Bldg. Maint. Indus., Inc., 267 F.R.D. 257, 276 (D. Minn. 2007); Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 502 (W.D. Mich. 2005); Bice of Chi., 229 F.R.D. at 583. In particular, courts have denied discovery of U-visas in civil cases even where a defendant asserted that applications were relevant to assess credibility, citing the chilling effect of such discovery. See, e.g., EEOC v. Glob. Horizons, Inc., No. 11-00257, 2012 U.S. Dist. LEXIS 182021, at *22 (D. Haw. Dec. 21, 2012) (explaining that “[t]he potential chilling effect” of immigration-related discovery, including U-visas, “significantly outweighs the benefit of the information that the Defendants may obtain related to credibility”); David, 735 F. Supp. 2d at 443, 448 (denying discovery of U-visa applications although defendant claimed they were relevant to credibility; accepting plaintiffs’ proposed compromise to produce statements attached to visa applications).
Although the district court’s September 22 order discussed the in terrorem effect as to the Individual Plaintiffs, it offered only perfunctory analysis—in three short footnotes—as to the Aggrieved Individuals. Footnote 4 presumed that Section 1367(a)(2) would not preclude discovery from the Aggrieved Individuals “through other means, including a [Fed. R. Civ. P. 45] subpoena.” ROA.13047-48 (RE Tab 5). Footnote 7 briefly concluded that the magistrate judge “otherwise … did not err in balancing the conflicting interests as to [the Aggrieved Individuals.]” ROA.13050 (RE Tab 5). And Footnote 8 assumed U-visa discovery would not harm the Aggrieved Individuals, although acknowledging that some Aggrieved Individuals “remain employed [at Koch Foods].” ROA.13052 (RE Tab 5). These three brief footnotes were insufficient to weigh the in terrorem effect on the Aggrieved Individuals against Koch Foods’ asserted need for U-visa discovery. The October 29 order simply reiterated the same rationales, citing to the three footnotes. ROA.13100 (RE Tab 6).
The district court’s cursory analysis was even more so because Koch Foods had not yet propounded U-visa discovery to the Aggrieved Individuals. That is, the district court was examining the in terrorem effect of speculative discovery, not actual discovery requests. The same is true of the October 29 order, in which the district court authorized new discovery in addition to the written discovery already propounded to the Individual Plaintiffs, without separately analyzing the in terrorem effect of future depositions (including redepositions of already-deposed witnesses), future subpoenas, and the like. ROA.13100-01 (RE Tab 6).
Moreover, the district court’s analysis of the in terrorem effect was flawed and discounted important facts. For example, the district court downplayed the in terrorem effect for the Individual Plaintiffs on the rationale that they no longer work at Koch Foods, then applied the same reasoning to the Aggrieved Individuals—in a footnote—although it acknowledged that some Aggrieved Individuals still worked at Koch Foods. ROA.13052 (RE Tab 5). Of course, current employees could reasonably fear retaliatory termination if Koch Foods learned they lack status or have only temporary status; in fact, Koch Foods has indicated that it would terminate any undocumented employees. ROA.12661. But both current employees and those who no longer work at Koch Foods may fear that Koch Foods will report them—and their family members—to authorities, or otherwise retaliate. See Rivera, 364 F.3d at 1064; Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 886-87 (1984) (employer reported undocumented workers to authorities after they voted for union representation). And such fear would be well-founded because many Koch Foods workers endured frequent slurs directed at immigration status and threats of deportation or arrest, and because Koch Foods has previously reported workers to criminal law enforcement authorities. See ROA.2100, ROA.12221-22.; see also supra at 7, 9 (discussing slurs and threats).
The district court also erroneously concluded that U-visa discovery would not be harmful because U-visa applicants have “already revealed to federal immigration and other officials that they are not or were not authorized to be in the United States.” ROA.13052 (RE Tab 5); see also ROA.12155 (RE Tab 7) (magistrate judge) (same). But USCIS—which processes U-visa applications—and Immigration and Customs Enforcement (ICE)—which has jurisdiction over immigration detention and removals—are separate arms of DHS. And the EEOC’s knowledge of a claimant’s immigration status is not attributable to ICE. Furthermore, the district court failed to understand that undocumented and documented employees alike may fear disclosure of immigration status. Undocumented workers may fear consequences such as removal, criminal prosecution, or termination. See, e.g., Rivera, 364 F.3d at 1064. And documented workers “may fear” repercussions if their status changes in the future, or that disclosure “would reveal [] immigration problems of [] family and friends,” and “may feel intimidated [at] … having their immigration history examined in a public forum.” Id. at 1065.
The district court also erred in focusing on whether there was specific evidence that the Individual Plaintiffs and Aggrieved Individuals in this case would fear the consequences of U-visa discovery. Instead, the district court should have also considered that permitting U-visa discovery could create a chilling effect that would reach beyond this particular case. See Rivera, 364 F.3d at 1064 (agreeing with the district court’s conclusion that—even though the employer “promised not to disclose the plaintiffs’ immigration status to any outside party”—permitting immigration-related discovery “would likely deter [the plaintiffs] and future plaintiffs[] from bringing meritorious claims”). Therefore, courts limit immigration-related discovery not only to avoid harm to particular employees, but also because the in terrorem effect “unacceptably burden[s] the public interest.” Rivera, 364 F.3d at 1065; see also EEOC v. Willamette Tree Wholesale, Inc., No. CV 09-690-PK, 2010 U.S. Dist LEXIS 97380, at *13 (D. Or. July 8, 2010) (“[T]he public interest would be far better served by avoiding the potential chilling effect on meritorious employment discrimination claims that requiring disclosure might have than by requiring disclosure, even in the absence of the potential for harm to these particular claimants.”). Permitting U-visa discovery here would “burden the public interest” because it could deter other immigrant employees from exercising their civil rights, and because it would inhibit the EEOC’s efforts to enforce violations of workplace discrimination laws that adversely affect those workers. See infra at 63-64.
Finally, the district court erred in assuming that a protective order could neutralize the in terrorem effect. ROA.13053 (RE Tab 5). The December 8 protective order illustrates that a protective order cannot adequately protect against the in terrorem effect in this suit; therefore, prohibiting U-visa discovery is the better approach to balancing the parties’ interests. The magistrate judge declined to adopt measures barring Koch Foods itself from receiving U-visa information and prohibiting any use of U-visa information outside this lawsuit. ROA.13216-17 (RE Tab 8). Instead, the magistrate judge permitted Koch Foods to use U-visa information to terminate employees when “otherwise required by applicable law,” and authorized Koch Foods to share U-visa information “with immigration authorities or other law enforcement officials” where “failure to do so would constitute a violation of criminal law.” ROA.13216-17 (RE Tab 8).
In practice, these exceptions are quite broad, and they go to the heart of the in terrorem effect. For instance, Koch Foods has indicated that, if it learns that an employee does not have work authorization, it believes it is obligated by law to terminate the employee. ROA.12661. This example shows that the protective order cannot truly mitigate the fear of potential termination stemming from U-visa discovery. Therefore, the better approach—one that would take into account both the in terrorem effect and Koch Foods’ legal obligations—is to prohibit U-visa discovery entirely. See Rivera, 364 F.3d at 1064 (affirming prohibition on immigration-related discovery even though the employer “promised not to disclose the plaintiffs’ immigration status to any outside party”).
Finally, this Court should reverse the district court’s discovery rulings because “[they] affected [the EEOC’s] substantial rights.” Green, 754 F.3d at 329. The district court’s rulings authorizing U-visa discovery from the Aggrieved Individuals would hinder the EEOC’s enforcement efforts in this suit and in other efforts to enforce the rights of immigrant workers. “The EEOC’s primary role is that of a law enforcement agency,” In re Bemis Co., 279 F.3d 419, 421 (7th Cir. 2002), and “it is crucial that the Commission’s ability to investigate charges of systemic discrimination not be impaired.” EEOC v. Shell Oil Co., 466 U.S. 54, 69 (1984). However, EEOC enforcement depends on “the cooperation of employees who are willing to file complaints and act as witnesses.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). As described supra at 59-60, permitting U-visa discovery from the Aggrieved Individuals could cause actual harm—including possible job loss or reports to immigration enforcement authorities—for any Aggrieved Individuals who lack legal immigration status. And U-visa discovery will create an in terrorem effect that may intimidate even those who currently have status. See Rivera, 364 F.3d at 1065 (explaining that documented individuals may fear disclosure of immigration information because their status may change, and because they fear scrutiny of their immigration history). Permitting U-visa discovery here will have repercussions beyond this case by undermining immigrant employees’ willingness to assist the EEOC by reporting discrimination and cooperating in enforcement efforts.
Finally, the district court’s rulings substantially affected the EEOC’s rights because they permit extensive new discovery late in the discovery period. Koch Foods filed its motion for U-visa discovery after the parties conducted extensive written discovery and dozens of depositions, with only about six months remaining in the discovery period. Now, the district court has authorized subpoenas requesting U-visa discovery to all 115 Aggrieved Individuals and re-depositions of dozens of Aggrieved Individuals who were previously deposed. This new discovery will impose substantial costs on the EEOC, and will burden the Aggrieved Individuals who were previously deposed. Because the new discovery the district court has authorized will impose significant burdens on the EEOC and because it will hinder the EEOC’s enforcement efforts seeking relief for immigrant workers, this Court should determine that the district court’s rulings substantially affect the EEOC’s rights.
For the above reasons, the EEOC asks this Court to reverse the district court’s discovery rulings authorizing U-visa discovery, and to remand for further proceedings.
Respectfully submitted,
P. DAVID LOPEZ s/ Anne W. King_____
General Counsel ANNE W. KING
Attorney
JENNIFER S. GOLDSTEIN U.S. EQUAL EMPLOYMENT
Associate General Counsel OPPORTUNITY COMMISSION
Office of General Counsel
LORRAINE C. DAVIS 131 M St. NE, Fifth Floor
Assistant General Counsel Washington, DC 20507
(202) 663-4699
anne.king@eeoc.gov
Dated: October 15, 2015
I hereby certify that, on October 15, 2015, I filed the foregoing with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit via the CMF/ECF system, thereby serving the attorneys of record listed below:
Scott W. Pedigo
Adam H. Gates
Adria H. Jetton
Jennifer G. Hall
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
P.O. Box 14167
4268 I-55 North
Meadowbrook Office Park (39211)
Jackson, MS 39236-4167
Robert B. McDuff
McDuff & Byrd
767 North Congress St.
Jackson, MS 39202
Jerome Wesevich
Texas Rio Grande Legal Aid, Inc. - El Paso
1331 Texas Ave.
El Paso, TX 79901
s/ Anne W. King___________
ANNE W. KING
Attorney for the Equal Employment
Opportunity Commission
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M St. NE, Fifth Floor
Washington, DC 20507
(202) 663-4699
anne.king@eeoc.gov
Dated: October 15, 2015
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume requirements of Fed. R. App. P. 28.1(e)(2) and Fed. R. App. P. 32(a)(7)(B) because this brief contains 13,404 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(b)(iii) and Fifth Cir. R. 32.2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and Fifth Cir. R. 32.1 and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14-point Times New Roman font in the body and 12-point Times New Roman font in the footnotes.
s/ Anne W. King___________
ANNE W. KING
Attorney for the Equal Employment
Opportunity Commission
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M St. NE, Fifth Floor
Washington, DC 20507
(202) 663-4699
anne.king@eeoc.gov
Dated: October 15, 2015
[1] This Factual Background is intended to provide a general overview and does not cover all facts supporting the EEOC’s claims. Discovery has not yet concluded, and the record on appeal does not include all existing evidence pertinent to the EEOC’s allegations.
[2] The Commission uses the term “Aggrieved Individuals” based on the language of Title VII referring to “persons aggrieved.” See 42 U.S.C. § 2000e-5(b).
[3] The seven Charging Parties for whom the EEOC seeks relief are Agustin Barragan-Davalos, Aracely Calderon-Cortez, Ivone Castillo-Lopez, Jose Luis Cordero-Toledo, Idalia Domingo-Maldonado, Mardoqueo Lopez-Lopez, and Jose Rivera-Aranda. ROA.7320 (RE Tab 10). The eleven Individual Plaintiffs include the seven Charging Parties plus Erwin Castillo-Lopez, Maria Cazorla, Magnolia Perez-Hernandez, and Alma Roblero-Aguilar. ROA.251-52, ROA.345-47, ROA.1035.
[4] Koch Foods’ broad requests also sought discovery regarding efforts to obtain T-visas, Temporary Protected Status, and Violence Against Women self-petitions, see ROA.4072-75 (RE Tab 11), ROA.4090-92 (RE Tab 11), but the subsequent dispute centered on discovery of U-visas.
[5] The district court stated that it “affirm[ed] the Magistrate Judge on this issue,” ROA.13046 (RE Tab 5), but in fact the magistrate judge failed to address 8 U.S.C. § 1367(a)(2) at all.
[6] U-visa status normally extends up to four years. 8 U.S.C. § 1184(p)(6). A U-visa recipient who has been continually physically present in the United States for three years after receiving the U-visa may apply for lawful permanent residence. Id. § 1255(m)(1)(A). Lawful permanent residence is subject to DHS’s determination that the applicant’s “continued presence in the United States is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest.” Id. § 1255(m)(1)(B). Also, U-visa recipients may receive Employment Authorization Documents. 8 C.F.R. § 214.14(c)(7). Applicants may apply for derivative U-visas for qualifying family members, namely spouses, children, and, for applicants under 21, parents and unmarried minor siblings. 8 U.S.C. § 1101(a)(15)(U)(ii); 8 C.F.R. § 214.14(f)(1).
[7] An applicant may be inadmissible for a variety of reasons, including unlawful presence in the United States, making misrepresentations to federal immigration authorities, or criminal activity. See 8 U.S.C. § 1182. USCIS may grant an admissibility waiver to a U-visa applicant “if it determines that [waiver] is in the public or national interest.” 8 C.F.R. § 212.17(b)(1); see also 8 U.S.C. § 1182(d)(14). When an applicant is inadmissible due to involvement in “violent or dangerous crimes” or based on security grounds, USCIS will grant a waiver only “in extraordinary circumstances.” 8 C.F.R. § 212.17(b)(1).