Rivera v. Nibco, Inc., 02-16532.

• Decision Date: 20 September 2004
• Docket Number: No. 02-16532.,02-16532.
• Parties: Martha RIVERA; Mao Her; Alicia Alvarez; Eva Ariola; Peuang Bounnhong; Rosa Ceja; Chhom Chan; Bee Lee; Paula Martinez; Maria Domitilia Medina; Mai Meemoua; Margarita Mendoza; Bao Nhia Moua; Isidra Murillo; Maria Navarro; Vath Rattanatay; Ofelia Rivera; Sara Rivera; Maria Rodriguez; Maria Ruiz; Maria Valdivia; Sy Vang; Youa Xiong; See Yang; Xhue Yang, Plaintiffs-Appellees, v. NIBCO, INC., an Indiana corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

384 F.3d 822

Martha RIVERA; Mao Her; Alicia Alvarez; Eva Ariola; Peuang Bounnhong; Rosa Ceja; Chhom Chan; Bee Lee; Paula Martinez; Maria Domitilia Medina; Mai Meemoua; Margarita Mendoza; Bao Nhia Moua; Isidra Murillo; Maria Navarro; Vath Rattanatay; Ofelia Rivera; Sara Rivera; Maria Rodriguez; Maria Ruiz; Maria Valdivia; Sy Vang; Youa Xiong; See Yang; Xhue Yang, Plaintiffs-Appellees, v. NIBCO, INC., an Indiana corporation, Defendant-Appellant.

No. 02-16532.

United States Court of Appeals, Ninth Circuit.

Filed September 20, 2004.

Christopher Ho, Esq., The Legal Aid Society/Employment Law Center, San Francisco, CA, for Plaintiffs-Appellees.

William C. Hahesy, Esq., Sara Hedgpeth-Harris, Esq., Sagaser Franson & Jones, Fresno, CA, for Defendant-Appellant.

Amy Sugimori, Esq., New York, NY, Rebecca Smith, Esq., Olympia, WA, for Amicus, National Employment Law Project.

Brendan D. Cummins, Esq., Miller-O'Brien, P.L.L.P., Minneapolis, MN, for Amicus, The National Employment Lawyers Association ("NELA").

Before REINHARDT, SILER, JR.,^* and HAWKINS, Circuit Judges.

BEA, Circuit Judge, with whom Circuit Judges KOZINSKI, KLEINFELD and GOULD join, dissenting from the denial of rehearing en banc:

ORDER

Judges Reinhardt, Siler and Hawkins voted to deny the petition for rehearing. Judges Reinhardt and Hawkins voted to deny the petition for rehearing en banc and Judge Siler so recommended.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. Fed. R. App. P. 35.

The petitions for rehearing and rehearing en banc are denied.

BEA, Circuit Judge, with whom Circuit Judges KOZINSKI, KLEINFELD and GOULD join, dissenting from the denial of rehearing en banc:

The panel's decision allows a plaintiff who claims that racially discriminatory firing caused backpay and frontpay lost wages, to refuse to answer deposition questions touching on her place of birth and immigration status.

Thus, the panel's decision impedes the ascertainment of the truth in advance of trial, thereby profoundly subverting the purposes of liberal Discovery in civil cases. The decision also frustrates the purposes of national Immigration policy: to limit employment benefits to American citizens and foreign persons authorized to work in this country.

It may be tempting to increase the settlement value or the award of a minority worker's racial discrimination lawsuit by allowing her to include claimed lost wages and bar questioning of her immigration status. After all, the employer hired her and benefited from her labor. While she was working, the employer did not dig too deep into whether her papers were in order. Now that she asserts her civil rights against the employer's claimed discriminatory firing, the employer gets righteous, and for all the wrong reasons.

If estoppel by the employer's acts could bar enforcement of our country's Immigration laws, the panel's opinion might not be so objectionable. Of course, we know such private conduct cannot frustrate explicitly stated congressional public policy. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 151-52, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002) (holding that plaintiffs, who were unauthorized aliens, were not entitled to backpay as a remedy for violation of the NLRA because such remedy would "unduly trench upon" federal immigration policy expressed in the IRCA).

We risk corrupting an admirable civil rights policy to prevent discrimination when we rely on evasions to enforce it. Further, such evasions are not necessary to enforce that policy were the plaintiffs forthrightly to waive only one of their money claims, the one based on a possibly illegal contract, while retaining other money, equitable and counsel fees' claims.

The fact is that if plaintiffs do not have authorized immigration status, they are not entitled to be awarded back wages or wages they might have earned in the future from a job which they were incapable of holding, under our Immigration laws. See Hoffman Plastic, 535 U.S. at 151-52, 122 S.Ct. 1275.

To justify evading this obvious fact, the panel generates a fog of half-convincing procedural distractions, all of which disappear when examined under the light of principled reasoning and authorities.

1. The standard of review dictates the result?

Arguing the district court's decision affirming the Magistrate's order is "only" a Discovery order, and decides none of the merits, the panel seems to be deciding only a preliminary matter which, if wrong, can later be dealt with by the same trial court sometime before trial, or in trial.

This is precisely against the view of this court that the broad right of discovery is "based on the general principle that litigants have a right to `every man's evidence,' and that wide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for the truth." Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir.1993) (internal quotation marks and citations omitted).

Since the adoption of the Federal Rules of Civil Procedure in 1938, the courts have consistently held that Discovery was to serve as a device to clarify the basic issues between the parties. See Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 91 L.Ed. 451 (1947) ("[t]he various instruments of discovery now serve (1) as a device, along with the pre-trial hearing under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues").

Further, pre-trial discovery has been recognized as an essential means for evaluation of damages, so that settlements can be achieved. See United States v. Meyer, 398 F.2d 66, 71 (9th Cir.1968) (noting that encouraging settlements is a basic purpose of pre-trial discovery).

Absent bifurcation or phasing of issues by case management procedures,¹ there simply is no principled reason for delaying frank investigation of the nature and extent of damages, unless it is a desire to advantage the plaintiffs, at least temporarily, and for the purposes of driving a higher settlement. Tellingly, the district court did not indicate that it was premature to consider discovery into wage loss claims.

The panel's decision could be read merely as an affirmance of the trial court's exercise of discretion in case management "[a]t this early stage in the litigation." Rivera, 364 F.3d at 1064. If that is what the panel meant, it was wrong. The use of "early stage" is merely a characterization of an abstraction to avoid the facts of this case. What is likely, or even possible, to change as to the wage loss claim in the course of the litigation? Plaintiffs either did or did not suffer wage loss, depending on whether they had a legal right to hold their jobs. When is it "too soon" to ask a plaintiff claiming damages questions of fact as to whether she was and is legally entitled to those damages?²

Another abstraction presented, but unexamined, by the panel is the concept the district court engaged in: a "balancing of hardships," a basis of decision to which much discretion is given. See Rivera, 204 F.R.D. 647, 649 (E.D.Cal.2001). Let us then examine the hardships:

a. Plaintiffs' hardships.

If forced to answer birthplace and immigration status questions, plaintiffs will suffer the hardships of (a) possibly admitting lack of American citizenship or visa status permitting work and thereby lose the right to recover wage losses, past and future, and (b) risk providing evidence of lack of authorized alien status to the authorities, leading to possible removal from the United States.

Both of these "hardships" are merely threats to end plaintiffs' enjoying benefits to which they are not entitled under the law.

b. Defendant's hardships.

Defendant will have to prepare for trial or enter into settlement negotiations without essential proof to defend against the claims for wage loss, past and future, as well as foundational evidence (place of birth) for actuarial projections for the possible extent of non-economic damages (duration of emotional distress).

Both of these hardships are deprivations of rights heretofore guaranteed to the defendant by the Federal Rules of Civil Procedure (Rule 26 et seq.) for preparation of its defense at trial.

Hence, the "balancing of the hardships" involves the preservation of illegal benefits (to plaintiffs) versus the vindication of trial preparation rights granted to all litigants (defendant).

I respectfully submit that when viewed in the facts of this case, rather than as an airy abstraction, the "balance of hardships" makes the district court ruling for the plaintiff "clearly erroneous or contrary to law." Where, as here, a district court's discovery order is "clearly erroneous or contrary to law," the function of this court is not to ignore it, but to correct it. See Fed. R. Civ. P. 72(a); see also Osband v. Woodford, 290 F.3d 1036, 1041 (9th Cir.2002).

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

The basis of the panel's decision was solely that discovery as to the plaintiffs' place of birth is irrelevant; and that discovery as to their immigration status would have a "chilling effect" on the plaintiffs' exercise of their civil rights. See Rivera, 364 F.3d at 1062, 1064. Let us first examine the "irrelevancy" of plaintiffs' place of birth.

This determination is so clearly wrong, the panel's decision shies from touching it. First, the protective order prohibits questioning into plaintiffs' place of birth on the grounds that place of birth was "not relevant" to plaintiffs' claims. Rivera v. NIBCO, Inc., 204 F.R.D. 647, 649 (E.D.Cal.2001) ("[t]here appears to be no dispute that each plaintiff is a member of a protected class, and further...