U.S. v. Van

• Decision Date: 30 April 1991
• Docket Number: No. 90-1834,90-1834
• Citation: 931 F.2d 384
• Parties: 56 Empl. Prac. Dec. P 40,710 UNITED STATES of America, Francis D. Falkowski, Assistant District Director of Investigations, Immigration and Naturalization Service, Petitioners-Appellees, v. Vito VAN, doing business as ADT Engineering, Inc., Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 384

931 F.2d 384

56 Empl. Prac. Dec. P 40,710

UNITED STATES of America, Francis D. Falkowski, Assistant District Director of Investigations, Immigration and Naturalization Service, Petitioners-Appellees, v. Vito VAN, doing business as ADT Engineering, Inc. Respondent-Appellant.

No. 90-1834.

United States Court of Appeals Sixth Circuit.

Argued Feb. 14, 1991.

Decided April 30, 1991.

L. Michael Wicks, Asst. U.S. Atty. (argued), Stephen J. Markham, Detroit, Mich., for petitioners-appellees.

Dennis J. LeVasseur, James J. Walsh (argued), Bodman, Long & Dahling, Detroit, Mich., Donald S. Dobkin, Troy, Mich., for respondent-appellant.

Before NELSON and SUHRHEINRICH, Circuit Judges, and WELLFORD, Senior Circuit Judge.

SUHRHEINRICH, Circuit Judge.

In this expedited appeal respondent/appellant Vito Van appeals the district court's order enforcing a subpoena issued by the Immigration and Naturalization Service ("INS") on ADT Engineering, Inc. ("ADT") ¹ to produce all employment records relating to employees hired on or after November 7, 1986. Because we conclude that Vito Van lacks standing to appeal, we DISMISS the appeal.

FACTS

On January 3, 1990, petitioner/appellee Francis D. Falkowski, an INS assistant director for investigations, issued and served on ADT a subpoena directing ADT to appear on January 9, 1990, before INS Special Agent Joanne Hendricks in Detroit, Michigan; and to provide the following documents:

ALL INS EMPLOYMENT ELIGIBILITY VERIFICATION FORMS (I-9), AND ANY RELATING BOOKS, PAPERS, OR DOCUMENTS PERTAINING TO THE HIRING OF AND [SIC] ALL EMPLOYEES BY ADT ENGINEERING, INC., ON OR AFTER NOVEMBER 7, 1986, TO INCLUDE BUT NOT LIMITED TO: MASTER EMPLOYEE ROSTERS, PAYROLL RECORDS AND MESC FORM(S) 1017 FILED SINCE NOVEMBER 6, 1986, IRS FORMS 1099 ISSUED FOR THE YEARS 1988 AND 1989. (Emphasis added.)

The subpoena was issued pursuant to sections 235(a) of the Immigration and Naturalization Act of 1952 ("the Immigration Act"), and 1324a(e) of the Immigration Reform Control Act of 1986 (the "IRCA") to determine whether ADT was in compliance with the employment verification requirements of section 1324a(b) of the IRCA. See 8 U.S.C. Sec. 1324a(b).

On January 9, 1990, an attorney for ADT appeared and indicated that ADT would refuse to produce the documents responsive to the subpoena unless an agreement preventing their disclosure to uninterested parties was entered. The INS advised ADT that it could not enter such an order because of its statutory obligations under the Freedom of Information Act 5 U.S.C. Sec. 552. On February 1, 1990, ADT provided 51 separate I-9 forms to the INS, but refused to provide any further documents.

On February 23, 1990, the United States filed its petition to enforce the subpoena in the United States District Court for the Eastern District of Michigan. ² "Vito Van d/b/a ADT Engineering, Inc. a dissolved corporation" was named as the respondent. The district court entered an order directing Vito Van to show cause why he should not be compelled to obey the subpoena.

Vito Van responded to the order to show cause on April 3, 1990. He argued that:

                (1) Because the government failed to name the correct party, ADT, to which the subpoena was directed, as a respondent, the government's petition should be dismissed pursuant to Rule 12(b)(7), Fed.R.Civ.P.;    (2) the subpoena was not lawfully issued because it was issued by an immigration officer rather than an administrative law judge;  (3) the subpoena was excessive;  and (4) there was no provision by which the documents called for by the subpoena could remain confidential once disclosed to the INS.  The United States filed a reply brief on April 5, 1990, in which it agreed to the entry of a protective order shielding confidential information of the employer from disclosure
                

The district court conducted a hearing on April 10, 1990, and issued an opinion enforcing the INS subpoena on June 27, 1990. The district court rejected Vito Van's first three arguments, but indicated that it would enter protective order limiting the disclosure of non-public information to INS employees directly involved in the investigation. The parties disagree however as to whether that protective order was ever entered.

Vito Van d/b/a ADT Engineering, Inc., filed a notice of appeal on July 17, 1990, and also a motion for stay pending appeal. On September 20, 1990, the district court entered an order granting the motion for stay pending appeal. The government then moved for an expedited appeal before this court. That motion was granted on October 15, 1990.

On appeal Vito Van contends that the district court erred in finding that the subpoena was valid and enforceable; and further, in failing to enter the protective order.

DISCUSSION

A. Jurisdiction

An order of the district court enforcing a subpoena under 8 U.S.C. Sec. 1225(a) is an appealable final order, United States v. Vivian, 217 F.2d 882 (7th Cir.1955).

B. Statutory Overview

In 1986 Congress effected a major change in immigration law in the Immigration Reform and Control Act of 1986 ("IRCA"), Pub.L. No. 99-603, 100 Stat. 3359 (1986) (codified in various sections of Title 8 of the United States Code). The amendments reflect Congress' concern that the large influx of illegal aliens into the United States is due in part to the lure of jobs and that the employment of such aliens deprives many Americans (and other authorized workers) of jobs. See H.Rep. No. 99-682(I), 99th Cong., 2d Sess., reprinted in 1986 U.S.Code Cong. & Admin.News 5649, 5650-54. The IRCA makes it unlawful for any employer to knowingly hire an alien who is unauthorized to be employed in the United States or to knowingly continue to employ an alien whose employment is unauthorized. 8 U.S.C. Sec. 1324a(a)(1), (2). Section 1324a sets out an employment verification system under which an employer executes an employment verification form ("I-9") for each employee hired after November 6, 1986 attesting, under penalty of perjury, that it has verified that the employee is not an unauthorized alien by examining documents showing identity and employment authorization. Id. at 1324a(b)(1). The employer must examine the documents within three business days of hire, and certify on the I-9 form that he has done so. Id. at 1324a(b)(1); 8 C.F.R. Sec. 274a.2(b)(1)(ii). The employer is required to retain the I-9 form for three years, or for one year after the individual's employment terminates, whichever is later, and must make the form available for inspection by the INS on three days' notice. 8 U.S.C. Sec. 1324a(b)(3); 8 C.F.R. Sec. 274a2(b)(2).

The IRCA contains both civil and criminal penalties. 8 U.S.C. Sec. 1324a(e), (f). The attorney general has express authorization to investigate violations of the IRCA. Id. at Sec. 1324a(e). That duty has been delegated to the INS, 8 C.F.R. Sec. 100 et seq., which may impose civil penalties in the first instance. 8 U.S.C. Sec. 1324a(e)(3)-(6); 8 C.F.R. Sec. 274a.10(b). The INS initiates these proceedings by serving the employer with a notice of intent to fine; the employer may then request a hearing before an ALJ. 8 U.S.C. Sec. 1324a(e)(3); 8 C.F.R. Sec. 274a.9(c), (d). If the employer is dissatisfied with the administrative decision, he may obtain judicial review. 8 U.S.C. Sec. 1324a(e)(7).

The provisions of immediate concern deal with the power to issue subpoenas. Section 1324a(e)(2) of the IRCA, which authorizes investigations of employer violations under the IRCA, states:

(2) Authority in investigations.

In conducting investigations and hearings under this subsection--

(A) immigration officers and administrative law judges shall have reasonable access to examine evidence of any person or entity being investigated, and

(B) administrative law judges may, if necessary, compel by subpoena the attendance of witnesses and the production of evidence at any designated place or hearing.

In case of contumacy or refusal to obey a subpoena lawfully issued under this paragraph and upon application of the Attorney General, an appropriate district court of the United States may issue an order requiring compliance with such subpoena and any failure to obey such order may be punished by such court as a contempt thereof.

8 U.S.C. Sec. 1324a(e) (emphasis added). Furthermore, under section 235(a) of the Immigration Act:

The Attorney General and any immigration officer, including special inquiry officers, shall have power to require by subpena the attendance and testimony of witnesses before immigration officers and special inquiry officers and the production of books, papers, and documents relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of the Service, and to that end may invoke the aid of any court of the United States....

8 U.S.C. Sec. 1225(a) (emphasis added).

Although section 235(a) appears in a part of the Immigration Act that describes the powers of INS agents on border patrol, the Supreme Court has held that the addition of the clause "or concerning any matter which is material and relevant to the enforcement of the Act" encompasses the full range of subjects covered by the statute. See United States v. Minker, 350 U.S. 179, 184-85, 76 S.Ct. 281, 285, 100 L.Ed. 185 (1956). In Minker the Supreme Court also held that section 1225(a) does not empower an immigration officer to subpoena a naturalized citizen who is the subject of an investigation by the INS to testify in an administrative proceeding before such officer. Id.

C. Standing

Before we can address Vito Van's arguments on appeal we must consider an issue not raised by the parties, namely that of Vito Van's standing to appeal. Standing is a threshold inquiry that a court must consider prior to addressing the merits of an appeal. T.H.E. Ins. Co. v. Naghtin, 916 F.2d 1082, 1085 (...