International Ladies' Garment Workers' Union, AFL CIO v. Sureck, AFL-CIO

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation681 F.2d 624
Docket Number80-5153,Nos. 80-5054,AFL-CIO,80-5035 and 80-5152,s. 80-5054
PartiesINTERNATIONAL LADIES' GARMENT WORKERS' UNION,; Herman Delgado; Ramona Correa; Francis Labonte; and Maria Miramontes, on behalf of themselves and all persons similarly situated, Plaintiffs-Appellants, v. Joseph SURECK; William French Smith; * Leonel J. Castillo; and The Immigration and Naturalization Service, Defendants-Appellees. The INTERNATIONAL LADIES' GARMENT WORKERS' UNION,; Herman Delgado; Ramona Correa; Francis Labonte and Maria Miramontes, on behalf of themselves and all persons similarly situated, Plaintiffs-Appellants, v. Joseph SURECK; Gil Clarin; James Robinson; William French Smith; * Leonel J. Castillo; and The Immigration and Naturalization Service, Defendants-Appellees.
Decision Date15 July 1982

Henry R. Fenton, Levy & Goldman, Los Angeles, Cal., Michael Kantor, Manatt, Phelps, Rothenberg & Tunney, Los Angeles, Cal., for plaintiffs-appellants.

Lawrence B. Gotlieb, Molly Munger, Asst. U. S. Attys., Los Angeles, Cal., for defendants-appellees.

On Appeal from the United States District Court for the Central District of California.

Before ANDERSON and NORRIS, Circuit Judges, and MUECKE, District judge **.

J. BLAINE ANDERSON, Circuit Judge:

This case presents another challenge to the methods used by the Immigration and Naturalization Service (INS) in its efforts to vigorously enforce the nation's immigration laws. Appellant International Ladies' Garment Workers' Union (ILGWU) and the named appellants appeal from district court rulings dismissing the ILGWU as a representational plaintiff, denying class certification, and denying two motions for summary judgment while granting cross motions for summary judgment in favor of the appellees (all referred to as "INS"). We reverse the summary judgment granted to the INS on the challenge to the detention and questioning.

I. FACTS

Two actions, eventually consolidated, were filed in the district court requesting declaratory and injunctive relief from the INS' pattern and practice of conducting factory surveys or sweeps through factories and workplaces for purposes of locating illegal aliens. 1 Appellants challenge the INS activity as violative of the Fourth and Fifth Amendments.

The record demonstrates that at the time this litigation was initiated, the INS concentrated its Area Control operations 2 at workplaces rather than in residential areas because of the agency's limited resources and its experience in successfully apprehending large numbers of illegal aliens employed in various factories, most notably in the garment industry. The record also indicates that the Los Angeles District Office of the INS was conducting approximately four factory surveys per week and, on occasion, more than 100 illegal aliens were apprehended in a single factory as a result of surveys performed at various establishments.

The record also describes the typical factory survey as one commenced when the INS receives information, sometimes from anonymous sources, that a particular workplace may be employing illegal aliens. In order to verify this information, INS agents place the suspected workplace under visual surveillance in an effort to determine from observations of the workforce entering and leaving the workplace whether the company does indeed employ illegal aliens. If their information is verified, the agents are instructed to request permission of the workplace owner or management for the INS to enter and question suspected illegal aliens with the ultimate objective of arresting those found to be in the country illegally and referring them to appropriate deportation proceedings. The INS reports that approximately 90% of the owners and managers consent to the surveys of their workforce; the INS obtains search warrants to enter premises without such consent.

The record is free of disputed issues of material fact, although varying characterizations of the events surrounding the typical factory survey appear. After receiving consent or pursuant to warrant, INS agents enter the workplace by stationing agents at exits and entrances in order to prevent persons from leaving the workplace. 3 The remaining agents proceed through the factory, questioning workers as to their citizenship status. While the officers and agents are instructed to be courteous and cause as little disruption as possible, the survey process often begins with workers' cries of "la migra" (the immigration), followed by attempts by some workers to hide or run from INS officers conducting the survey. Disruption of the workplace usually occurs. The officers are instructed to question each worker, although the INS admits that such a task is not often possible. 4

Three particular surveys are challenged in this case. Search warrants were issued for two surveys conducted at the Southern California Davis Pleating Company (Davis) workplace, the first conducted on January 4, 1977, where 78 illegal aliens were apprehended, and the other conducted on September 27, 1977, where 39 illegal aliens were apprehended. The third challenged survey occurred at a firm known as Mr. Pleat on October 3, 1977, where the INS entered by consent of the owner and where 45 illegal aliens out of workforce of approximately 90 were arrested. Appellants Delgado and Correa, United States citizens, and appellant Labonte, a resident alien, were all subjected to INS questioning at the Davis plant during the September survey. Appellant Miramontes, a resident alien, was asked three questions during the October survey of Mr. Pleat.

The search warrants for the Davis surveys were issued under Fed.R.Crim.P. 41 and did not state with particularity the names of any individual illegal aliens sought as the objects of the searches. 5 The INS entered the Mr. Pleat facility with the consent of the owner of the facility and not the consent of all of the workers. The record also indicates that during the Davis surveys, the INS agents did not question every worker as policy would usually dictate because manpower limitations prevented such a procedure in a factory employing 200-300 workers as did Davis at the time of the surveys. Instead, the workers chosen for questioning at the Davis surveys were selected with the agents' use of a combination of objective and subjective factors. 6

As the labor organization certified as the exclusive representative of production and maintenance employees at the Davis and Mr. Pleat facilities, the ILGWU asserts its representational capacity to sue on behalf of its members under the Labor-Management Relations Act of 1947, 29 U.S.C. §§ 141, et seq. The ILGWU alleges that it represents thousands of garment workers, the majority of whom are of Latin ancestry employed in shops throughout the Central Judicial District of California. It alleges injury to itself and its members as a result of the INS factory surveys. Acting upon a motion filed by the INS, the district court ordered the Union dismissed from the litigation by an order filed on November 16, 1979, and entered as a final judgment under Fed.R.Civ.P. 54(b) on December 13, 1979. The Union appeals from this dismissal in Nos. 80-5035 and 80-5054.

The appellants' motion to certify a class consisting of "all persons of Latin ancestry or of a Spanish surname who are, will be, or have been employed in the garment industry or in any other industry in the Central Judicial District of California" was denied by Order entered May 31, 1979. Appellants appeal from this order in Nos. 80-5152 and 80-5153.

In December of 1979, the parties filed cross-motions for partial summary judgment on the issues of the constitutional validity of the search warrants and the validity of the surveys conducted with consent of only the owner of the Mr. Pleat workplace. On these issues, the district court found for the INS, holding the warrants valid as issued under Fed.R.Cr.Pro. 41(b)(4), containing sufficient particularity as to the persons to be seized and based upon sufficient probable cause. As an alternative holding, the district court found that the appellants lacked a sufficient privacy interest in their workplace to contest the surveys pursuant either to warrant or consent.

In January of 1980, the parties filed cross-motions for summary judgment on the remaining issues involving the propriety of the INS detention and questioning of workers during the surveys. On these issues, the district court again found for the INS, holding that the appellants were not arrested, detained or seized in a manner implicating the Fourth Amendment, that the INS properly conducted the questioning pursuant to statutory authority contained in 8 U.S.C. § 1357(a)(1), and that even if appellants had experienced some form of seizure by the placement of the INS investigators at factory exits, that the degree of intrusion was so limited that no Fourth Amendment violation existed.

The American Jewish Committee and the Mexican American Legal Defense and Educational Fund were granted leave to file an amicus curiae brief. The amici concentrate on alleged Fifth Amendment equal protection violations stemming from the surveys. The record contains no reference to district court action on the Fifth Amendment issues raised. 7

II. STANDARD OF REVIEW

This case appeared before the district court on two sets of cross-motions for summary judgment. In granting the motions in favor of the INS, the district court also adopted, with some changes, the prepared findings of fact and conclusions of law as submitted to the court by the INS. The most significant of the findings and conclusions were the district court's determinations that the plaintiffs did not have a legitimate privacy interest in the factory premises in order to contest the issuance of the search warrants, that none of the named plaintiffs had been arrested, detained or seized, and that the placing of INS...

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