Broussard-Wadkins v. Maples
Broussard-Wadkins v. Maples
Opinion of the Court
MEMORANDUM OF OPINION
Table oe Contents
I. Overview of Civil Remedies Under Rico 1164
A. Legal Standard ....................................................1165
B. Expert Report of Edward Mallon....................................1166
1. Mallon’s methods...............................................1167
2. Mallon’s opinions...............................................1168
3. The admissibility of Mallon’s opinions............................1169
a. Speculation.................................................1169
b. Specific opinions............................................1171
i. Opinion regarding unauthorized workers...............1171
ii. Opinion regarding attestation on 1-9 Forms............1173
iii. Opinion regarding knowingly hiring illegal immigrants........................................1173
c. Conclusions................................................1174
C. Expert Report of Dr. George Borjas..................................1174
1. Dr. Borjas’s qualifications.......................................1174
2. Methods used by Dr. Borjas......................................1174
a. Autonomy of Maples Industries in setting wages...............1175
b. Impact of labor supply on the wage scale of Maples Industries.................................................1177
c. Conclusions and calculation of damages......................1179
3. Reliability and admissibility.....................................1179
a. Incompleteness.............................................1180
b. Reliability..................................................1180
i.Market power analysis................................1180
ii.Hispanic school enrollment...........................1181
iii.Alternative causes and conflict with Dr. Borhas’s academic publications..............................1182
III. Motion for Summary Judgment..........................................1184
A. Relevant Facts.....................................................1185
1. Maples Industries and defendants................................1185
2. Plaintiffs and other hourly employees............................1186
3. Hiring hourly-wage employees...................................1187
4. Fraudulent documents and unauthorized workers.................1190
5. Wages.........................................................1191
6. Immigration enforcement at Maples Industries ...................1192
B. Discussion.........................................................1193
1. The INA “hiring provision”......................................1193
a. Plaintiffs’ attack on Mateo’s credibility.......................1195
b. Plaintiffs’ “common sense” arguments.......................1196
2. The “attestation provision”......................................1199
a. Compliance with the verification provision....................1200
i. Statutory interpretation..............................1200
ii. Application of the statute to the facts in the record____1201
b. Compliance with the attestation provision....................1204
c. Damages and proximate cause...............................1205
IV. Conclusion and Orders.................................................1206
Plaintiffs, Audrey Broussard-Wadkins and Darlene Harbin, were hourly-wage employees of Maples Industries, Inc. They commenced this putative class action against the owners and officers of that company: ie., Wade Maples, John Maples, Howard Moore, and Gina Mateo.
I. OVERVIEW OF CIVIL REMEDIES UNDER RICO
In addition to the criminal sanctions provided by RICO, see 18 U.S.C. § 1968(a),
To establish the requisite “pattern of racketeering activity,” a plaintiff must demonstrate the “commi[ssion] of at least two distinct but related predicate acts.” Edwards v. Prime, Inc., 602 F.3d 1276, 1292 (11th Cir. 2010) (alteration and emphasis supplied) (quoting Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1282 (11th Cir. 2006)). Although the minimum number of predicate acts necessary to establish a “pattern” is two, the mere existence of two acts does not automatically satisfy the pattern requirement; instead, the acts must be, as stated in Edwards, supra, “related.” Id.
Further, a “pattern” of racketeering activity can be established by showing repeated violations of the same predicate offense. See Cox v. Administrator United States Steel & Carnegie, 17 F.3d 1386, 1397 (11th Cir. 1994) (finding a pattern of racketeering activity on the basis of repeated violations of the same bribery provision). In this case, one predicate act that plaintiffs claim defendants (or their co-conspirators) committed is the repeated violation of § 274 of the Immigration and Nationality Act (“INA”), which is codified at 8 U.S.C. § 1324, and which is defined in RICO as a predicate act, but only if plaintiffs can prove that the violations were for financial gain. See 18 U.S.C. § 1961(1)(F).
Additionally, plaintiffs claim that, to facilitate that hiring, defendants conspired to have defendant Gina Mateo violate 18 U.S.C. § 1546(b)(3), which makes it a federal crime to use “a false attestation ... for the purpose of satisfying a requirement of section 274A(b) of the Immigration and Nationality Act....” 18 U.S.C. § 1546(b)(3).
“RICO claimants ... must [also] show (1) the requisite injury to ‘business or property,’ and (2) that such injury was ‘by reason of the substantive RICO violation.” Williams, 465 F.3d at 1283 (alteration supplied). Plaintiffs’ theory of damages is that defendants’ alleged acts of knowingly hiring illegal aliens (perpetrated in part through false attestation as to the validity of their identification documents) depressed their wages below what they otherwise would have earned, resulting in lost income for plaintiffs and a realization of greater profits for defendants.
II. MOTION TO STRIKE
Plaintiffs proffered the reports of two expert witnesses in opposition to defendants’ motion for summary judgment. Edward Mallon was presented as an expert on immigration matters, and offered opinions on the legal status of hourly-wage employees of Maples Industries and defendants’ compliance with the attestation statutes. Dr. George Borjas was touted as an economic expert, and his report serves as the basis for plaintiffs’ causation argument. Plaintiffs have offered no other evidence regarding causation, and they relied on Mallon’s opinions in their arguments in opposition to summary judgment. Thus, the court must rule on defendants’ motion to strike those reports before it can consider the question of summary judgment.
A. Legal Standard
Federal Rule of Evidence 702, read together with the trilogy of Supreme Court opinions that led to the Rule’s revision in 2011,
[T]he objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). At a minimum, the approved
(1) whether the theory or technique can be (and has been) tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) in the case of a particular ... technique, the known or potential rate of error, and
(4) whether the theory or technique is generally accepted by the relevant ... community.
Hendrix ex rel. G.P., 609 F.3d at 1194 (internal quotation marks and alterations omitted).
B. Expert Report of Edward Mallon
Edward Mallon is a former special agent of the Immigration and Naturalization Service (“INS”), and he was presented as an expert on immigration issues. Mallon began his career with the INS in 1972.
1. Mallon’s methods
To prepare his report, Mallon reviewed a sampling of personnel files obtained from Maples Industries. Mallon was provided a hard drive containing the files of roughly 3,700 hourly-wage workers hired during the class period; but, due to time constraints, he reviewed only 840 of those files.
After reviewing the Form 1-9, Mallon examined the corresponding application for employment
In making those determinations, Mallon relied on experience and knowledge gained while working for INS. He noted that many employees had Social Security numbers assigned to Puerto Rico, but their educational background was not consistent with Puerto Rican compulsory education laws.
2. Mallon’s opinions
Mallon concluded that, of the 840 employees whose personnel files he reviewed, 139 (16.547%) “were unauthorized to work in the United States.”
3. The admissibility of Mallon’s opinions
a. Speculation
Defendants first make a general argument that Mallon’s report “is fraught with unsupported, speculative statements.”
Defendants argue that Mallon’s knowledge about illegal immigration is not applicable to this case because it is “limited to aliens ‘apprehended for being in the United States illegally.’ ”
To the extent that general experience with illegal immigration is relevant to the facts in this case, Mallon is qualified to offer expert opinions on that subject. Even so, and even though an expert’s conclusion may superficially appear relevant to and helpful in the determination of facts at issue, it may ultimately prove unhelpful if it is too far divorced from the underlying data.
[T]he Supreme Court has noted that, in the context of this analysis, “conclusions and methodology are not entirely distinct from one another.” General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Although experts “commonly extrapolate from existing data ... nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Id. [47 ] Rather, the trial court is free to “conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Id.
Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir. 2010) (alteration supplied); see also, e.g., McDowell v. Brown, 392 F.3d 1283, 1301-02 (11th Cir. 2004) (“[A]n expert opinion is inadmissible when the only connection between the conclusion and the existing data is the expert’s own assertions ----”) (alteration supplied). If an expert’s facially relevant conclusion relates to the data it purports to rely upon only by his own assertion, it ultimately is simply an argument, “offering] nothing more than what lawyers ... can argue in closing arguments” and, consequently, fails to meet Rule 702’s “helpfulness” requirement. Frazier, 387 F.3d at 1262 (alteration supplied).
Indeed, Mallon has provided no connection between his conclusion that the immigrants covered in his expert report entered the country illegally and the data underlying his analysis. Plaintiffs point to the table outlining Mallon’s conclusion about each individual employee as evidence for such a connection, but nothing in that table addresses the issue of entering the United States.
Defendants’ second example of speculation is more troubling. Mahon’s comment that it “could be concluded” that human resources personnel were noting employees’ places of birth to justify questionable hires is speculation, and it is presented in a misleading fashion. Plaintiffs argue that Mahon did not actually render an opinion — the “could be concluded” language implies that he did not reach that conclusion — but that argument is unconvincing. Accepting Mahon’s couched language would essentially allow him to inject an opinion in his report without providing a basis for it, because he did not affirmatively endorse that conclusion. In plaintiffs’ view, it is not a conclusion based on speculation; instead, it is essentially speculation offered without a firm conclusion. Even if that is so, it is no better. An expert report is no place for speculation, and by implying an opinion without actually labeling it an “opinion,” Mahon appears to be trying to circumvent the requirement that ah opinions must be based on the application of reliable methodology to the evidence reviewed by the expert.
b. Specific opinions
i. Opinion regarding unauthorized workers
The central opinion in Mahon’s report, upon which ah others are built, is that 139 of the 840 employees whose personnel files Mahon reviewed were not authorized to work in the United States. Defendants argue that Mahon improperly chose the data on which he based his opinion, and that his methodology in examining that data was unreliable.
Defendants also attack Mahon’s methodology by asserting that “the ‘data’ that supports [sic ] Mahon’s Report is [sic ] an incomplete set of employment records chosen in a non-random way.”
Defendants also argue that Mallon’s use of the personnel files to determine immigration status was improper in and of itself. They note that he did not interview anyone in conducting his investigation, relying entirely on paper evidence, including photocopies of identification and employment verification documents, to reach his conclusions.
Further, Mallon’s reliance solely on documentary evidence (including photocopies), rather than interviews, does not undermine the reliability of his method. He has decades of experience as an INS investigator, including almost two decades running a document fraud task force. His determinations of falsity were usually based on inconsistent information between applications and identification documents within the same personnel file. For that type of determination, examining the original identification documents would offer no advantage over examining photocopies, except in those instances where a conclusion could be based on the color of inks and the depth of indentations made by the putative author. Although interviewing employees
ii. Opinion regarding attestation on 1-9 Forms
Defendants attack Mallon’s consultation of the personnel files, as a whole, to determine whether the certification section of the Department of Homeland Security’s Form 1-9 was properly completed. Defendants argue that Mallon’s approach brings in more information than human resources employees are required to consult in completing that Form. To the extent that Mallon uses information contained in the applications to conclude that the 1-9 Forms were falsely attested, the method is not reliable. As will be discussed in Part HI(C)(2)(a)(i) of this opinion, infra, the employer’s representative responsible for completing an 1-9 Form is not required to engage in the same type of searching inquiry that Mallon performed. Thus, to rely on information that would be outside the scope of the 1-9 process when attempting to determine whether that process was lawfully conducted is not proper.
Additionally, in reaching his conclusion that the human resources employees completing the 1-9 Forms were doing so in violation of the law, Mallon relied on the fact that the verification and certification sections were completed in different handwriting or different color ink.
Thus, the methodology underlying Mallon’s opinion that the 1-9 Forms were falsely completed is flawed in two ways. First, he relied on information outside the scope of the Form 1-9 verification procedure; and, he concluded that defendant Gina Mateo must have falsely attested, because that extra information indicated that many employees were unauthorized. Second, he. made the logically unsound leap from the conclusion that a Form 1-9 was not fully completed at one time to the conclusion that the person completing the form could not have personally reviewed the documents. For those reasons, his opinion regarding false attestation is unreliable and due to be stricken.
iii. Opinion regarding knowingly hiring illegal immigrants
Mallon also opined that human resources personnel employed by Maples Industries “knowingly hired aliens who were
Mahon’s opinion that illegal immigrants were knowingly hired is not reliable. He provides no factual basis or explanation for that opinion when he offers it at the end of the report. It appears to be a conglomeration of his two other opinions: that 139 of the 840 employees whose personnel files Mahon reviewed were not authorized to work in the United States; and, that Maples Industries personnel falsely attested on Forms 1-9. As stated above, his methodology for reaching the latter opinion is not reliable. Thus, Mahon’s conclusion that Maples Industries personnel knowingly hired illegal aliens must also be stricken.
c. Conclusions
In sum, Mahon’s offered three significant opinions in his expert report, but only one of them satisfies the admissibility requirements for expert testimony. Thus, the report will be admitted only to the extent that it relates to Mahon’s opinion that 139 of the 840 employees whose personnel files were reviewed by him were not authorized to work in the United States. Mahon’s conclusions that defendant Gina Mateo was not properly completing the 1-9 Forms, and that she was knowingly hiring illegal immigrants, are not based on sufficiently reliable methodology.
C. Expert Report of Dr. George Borjas
Defendants also have moved to strike the expert report of Dr. George J. Borjas, plaintiffs’ economic expert. Rather than attacking Dr. Borjas’s methodology or conclusions point by point, defendants focus on the fact that Dr. Borjas based his economic analysis on statistics derived from Mahon’s report.
1. Dr. Borjas’s qualifications
Dr. Borjas is a professor of economics and social policy at Harvard’s Kennedy School of Government, and a research associate at the National Bureau of Economic Research.
2. Methods used by Dr. Borjas
Dr. Borjas used a series of statistical measures to evaluate the impact on plaintiffs’ wages of defendants’ alleged hiring of illegal aliens. To conduct such an analysis, he necessarily had to begin with data on the number of illegal aliens Maples Industries actually employed. For that number, he turned to Mahon’s report, and it is his reliance on the Mallon report that forms the gravamen of defendants’ motion to strike his report.
Dr. Borjas began his report with a summary of existing economic theory and scholarship regarding the impact of immigration on wages. He stated that, absent other factors, “an immigration-induced increase in the size of the workforce lowers the wage of competing workers.”
a. Autonomy of Maples Industries in setting wages
Dr. Borjas considered information regarding employment in Jackson County and determined that Maples Industries is the largest manufacturer in the area, and the largest employer of unskilled labor.
Dr. Borjas compared the three wage trends he created for Maples Industries with similar trends he had calculated for the four other companies that provided wage information.
Once Dr. Borjas had compared the raw data from Maples Industries and the comparator firms and geographic areas, he used that data to create a regression model for the purpose of determining the relationship between wages at Maples Industries and the comparators.
Dr. Borjas concluded that “the wage trends at Maples do not seem to resemble the wage trends observed in firms that may hire from the same pool of low-skill workers, nor does it seem to resemble the wage trends observed in the overall market for low-wage labor in the state of Alabama.”
b. Impact of labor supply on the wage scale of Maples Industries
Dr. Borjas next focused on wage elasticity at Maples Industries: that is, the amount by which the wages paid by that company changed due to a shift in the supply of labor available to the company.
Using those three sets of values — wages, man-hours, and immigrant population— Dr. Borjas created another regression model.
Dr. Borjas ran the regression model using several different calculations of wages: “the straight-time hourly wage rate, the average hourly wage rate that includes overtime, the average hourly wage rate that includes both overtime and bonuses, and gross weekly pay (which includes overtime, but not bonuses).”
Dr. Borjas also ran similar regressions with data from other local employers. The employment elasticity for each of two neighboring employers was within the standard error for each model, representing no significant correlation between Hispanic school enrollment and employment at those firms.
Having concluded that the hiring of illegal immigrants did cause wage depression, Dr. Borjas set out to calculate the extent of that negative impact. He used Mallon’s report to determine how many illegal immigrants were hired in each year during the class period, and how many man-hours were worked by both legal and illegal workers in each year.
3. Reliability and admissibility
Defendants devote very little of their briefs to Dr. Borjas’s report, and the only argument they actually make is that Dr. Borjas relied on Mallon’s report, which they argue is inadmissible.
This is not the first time this court has been presented with an expert report penned by Dr. George Borjas. The attorneys who represent the plaintiffs in the present case brought another action based on the same theories underlying this case. See Hall v. Thomas, 753 F.Supp.2d 1113 (N.D.Ala. 2010). The plaintiffs in Hall presented a report written by Dr. Borjas that purportedly provided expert opinions on the impact of the employment of undocumented immigrants at the Pilgrim’s Pride poultry plant in Russellville, Alabama. Id. at 1118. This court ruled that Dr. Borjas’s
a. Incompleteness
The first ground on which this court found Dr. Borjas’s expert report inadmissible in Hall was that the report was “fatally incomplete.” Id. at 1139. In that report, Dr. Borjas described the type of regression model that he performed in preparing his report for this case. However, he did not actually perform the regression in Hall. Id. at 1142. In preparing that report, Dr. Borjas ignored the data before him, which indicated that man-hours worked at the defendants’ plant had actually decreased during the relevant time period. Id. at 1141. He asserted that that data must have been erroneous and used the plant’s output, which had increased, as a proxy for man-hours worked. Id. During his deposition in Hall, he admitted that he had assumed that there had been no increase in automation at the plant during the relevant period, which could have increased production while reducing man-hours. Id. In fact, there had been an increase in automation. Id. Thus, in Hall, Dr. Borjas did not use the correct data to perform the regression analysis central to his methodology. Instead, he used a false assumption to circumvent the facts in the case, which did not fit neatly into his theory. Finally, he concluded only that the increase in the labor supply in Russellville, caused by the influx of illegal immigrants, led to lower wages at the plant. Id. at 1143. He did not actually opine that the hiring of illegal immigrants at the plant itself caused lower wages. Id. For those reasons, this court determined that his testimony was merely ipse dixit, and would not be helpful to a jury. Id. at 1142.
Here, Dr. Borjas did run the regression. Nothing in the record suggests that the data on which he relied were incomplete or inaccurate. Defendants did not depose him and, thus, any potential gaps in the data or false assumptions underlying the data have not been exposed. .For those reasons, the court will not strike Dr. Borjas’s report on the basis of incompleteness, and will turn instead to an evaluation of the reliability of the report.
b. Reliability
In addition to finding Dr. Borjas’s report incomplete, this court’s opinion in Hall found that it was not sufficiently reliable for three reasons: his “market power” analysis was unreliable; his use of Hispanic school enrollment as a proxy for the presence of illegal immigrants in the labor force was unreliable; and he failed to account for possible alternative causes, in a departure from his own scholarship. The latter two flaws also are present in Dr. Borjas’s report in this case.
i. Market power analysis
In Hall, this court found Dr. Borjas’s “market power analysis” unreliable for several reasons. Dr. Borjas simply compared the starting wages paid at the Pilgrim’s Pride plant in Russellville with those paid by other employers in the same area, and determined that the plant paid a lower wage. Id. at 1148. In doing so, he ignored several other factors that could have contributed to the lower wage. He did not consider the fact that one of the comparator firms had a “deliberate policy” to set higher wages to attract the type of workers it desired. Id. He did not control for the fact that the poultry processing industry pays lower wages than other manufacturing industries on the national level, a factor that has been the subject of his own research. See id. at 1149 (“Dr.
Dr. Borjas’s analysis of Maples Industries as a company with market power does not suffer from all of the same flaws. There is no evidence that any of the comparator firms deliberately paid higher-than-market wages.
ii. Hispanic school enrollment
In the report he submitted in the Hall case, Dr. Borjas used the number of Hispanic students enrolled in Russellville schools as a proxy for the immigrant population in the area. Id. at 1145. In his deposition in that case, he admitted “that the use of ethnic-breakdown school enrollment data in a study of this variety would be entirely novel.” Id. He also admitted that he had not performed any test to determine the validity of using enrollment data as a proxy for immigrant population, and that his “whole method would fail” if that use were invalid. Id. at 1146. Dr. Borjas admitted that, in comparing increases in Hispanic school enrollment with depression of wages, he did not control for any other factors that may have influenced wages: e.g., “changes in economic climate, demand for labor, changes in local hiring environment, or strategic corporate decisions.” Id. at 1147. Finally, Dr. Borjas’s theory in Hall was undermined by the fact that the total enrollment of Russellville schools remained static during the relevant time period: i.e., regardless of the percentage of immigrant workers in the population, the total supply of workers remained the same. There was no “supply shock” created by an influx of immigrants that allowed the defendants to lower wages due to an abundance of workers. Id. at 1147.
Here, Dr. Borjas once again used Hispanic school enrollment as a proxy for the immigrant population.
Moreover, this court is not entirely convinced that the single working paper cited by Dr. Borjas is sufficient evidence of the reliability of the use of enrollment figures as a proxy for illegal immigrant employment. In Hall, this court stated that “in light of the political and racial implications of a case of this variety, this court is not prepared to admit as reliable this novel use of Hispanic enrollment as a proxy for an influx of immigration.” Hall, 753 F.Supp.2d at 1147. Dr. Borjas’s citation to a single paper does not eliminate the novelty of his method, and this court has the same qualms about its reliability as expressed in Hall.
iii. Alternative causes and conflict with Dr. Borjas’s academic publications
Finally, this court in the Hall case determined that Dr. Borjas failed to adequately account for possible alternative causes for the decrease in wages at the defendants’ Russellville plant. First, the court noted that Dr. Borjas had previously applied his methodology on the national level only, and that its use was “entirely without precedent at the level of a single firm in a small rural town.” Id. at 1151. In. fact, Dr. Borjas “has been among the most stalwart critics of studies of the impacts of immigration on native wages done at geographic levels smaller than whole nations.” Id. In his academic literature, Dr. Borjas identified numerous economic factors that undermine the accuracy of studies of the impact of immigration on the local or regional level. Id. Yet he offered no explanation as to why he “chose[] to jettison [his] skepticism” for those studies in preparing his expert report for the Hall case. Id. (alterations supplied). He also did not account for factors specific to that case: the wage decisions at the plant were the result of the policies of a nationwide corporation, and that corporation was in the midst of financial turmoil (and ultimately bankruptcy) during the class period. Id. at 1152-53.
This court noted that, under Dr. Borjas’s general theory on the impact of immigration on wages, which assumed that all unauthorized workers increase the labor supply,
wages at Pilgrim’s Pride should fall if immigrants had moved into the area, even if Pilgrim’s Pride had never hired a single one. Thus, the same decline in plaintiffs’ real wages would occur even if the defendants had not committed the required predicate act — a fact that entirely eviscerates the assumption that the hiring (much less hiring with requisite knowledge) was the “but for” cause of plaintiffs’ depressed wages.
Any or all of these factors (and probably several more) could easily explain a diminution in wages; yet ... Dr. Borjas would control for none of them and would, instead, attribute the entire diminution in wage to increased labor supply and then multiply that coefficient by the number of immigrants allegedly hired in violation of the INA.
Id. at 1153 (citation omitted).
Maples Industries is a local, family-owned firm that, as far as the record shows, was not in danger of bankruptcy
As this court stated in Hall, Dr. Borjas’s own academic writing has stressed the importance of reviewing the economic impact of immigration on a national level. See Hall, 753 F.Supp.2d at 1151. In those writings, he stated that “studies done at even the regional level ... are ‘completely uninformative’ and ‘do not measure the impact of immigration on the native labor market.’” Id. (quoting George Borjas, Heaven’s Door 73-82 (1997)) (emphasis supplied). He has written that, “ ‘[b]e-cause local labor markets adjust to immigration ... the labor market impact of immigration may be measurable only at the national level.’ ” Id. (quoting George J. Borjas, The Impact of Immigration on the Labor Market 7 (Conf. on Labor & Capital Flows in Eur., Jan. 2006)) (emphasis supplied). He has written that, due to “the easy mobility of both capital and workers between geographic areas within the United States ... ‘immigration affects every city, not just the ones actually receiving immigrants.’ ” Id. (quoting George J. Borjas, The Labor Demand Curve Is Downward Sloping: Reexamining the Impact of Immigration on the Labor Market, 118 Q.J. Econ. 1335, 1338 (2003)) (emphasis in original).
Thus, Dr. Borjas’s statement in his report that his writings do not suggest that a reliable study cannot be conducted on a firm-wide level is, at best, a dramatic, unexplained, about-face from the position he clearly stated in his published, peer-reviewed writings. At worst, it is a disingenuous gloss on that scholarship. Although it is certainly possible that Dr. Borjas has adopted a new line of thinking about the study of the impact of immigration on the local level, nothing in his report demonstrates the reliability of that new view. In his writings, he stated that local studies were not informative, because they did not account for mobility within a country and other factors affecting local economies. In his expert report, he ignored that issue and, instead, said that single-firm studies had not previously been feasible because data was not available. Thus, his explanation did not actually address the underlying problem he had identified in his academic writings.
If allowed to testify, Dr. Borjas would offer “expert” opinions that fly in the face of the same scholarship on which plaintiffs rely to qualify him as an “expert” witness in the first place. In considering the admissibility of expert testimony, one of the factors a court is to consider is “whether the theory or technique is gener
III. MOTION FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56 provides that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
“In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). “[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (alteration supplied); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (asking
A. Relevant Facts
1. Maples Industries and defendants
Maples Industries manufactures rugs for residential use.
Defendant Howard Moore was the Human Resources Manager at Maples Industries.
2. Plaintiffs and other hourly employees
Plaintiff Audrey Broussard-Wadkins is a United States citizen.
The hiring process for hourly-wage employees begins with the submission of an employment application.
Beginning in November of 2007, defendant Howard Moore used the Social Security Administration’s online verification service to confirm the name, gender, date of birth, and Social Security number of each applicant who satisfactorily completed the physical examination and drug screen.
I attest, under penalty of perjury, that I have examined the document(s) presented by the above-named employee, that the above-listed document(s) appear to be genuine and relate to the employee named, that the employee began employment on (month/day/year)_and that to the best of my knowledge the employee is authorized to work in the United States.174
As the Personnel Clerk responsible for conducting the Spanish language orientations, defendant Gina Mateo completed the employer sections of the 1-9 Forms for Spanish-speaking employees.
During the orientation, Mateo looked at the documents each Spanish-speaking employee presented to see whether the photographic identifications matched the person sitting in front of her.
4. Fraudulent documents and unauthorized workers
Some of the documents Mateo approved by attestation have defects that seriously undermine their authenticity. One employee, Ismael Burgos Diaz, presented a document purporting to be a Tennessee non-driver’s identification card that listed his home address as “80 Mimosa Road, Chatanoga, Tennessee.”
Over the course of the class period, Maples Industries hired approximately 3,700 hourly-wage workers.
5. Wages
Hourly-wage employees of Maples Industries were paid according to a wage scale that had been in place for decades.
Although the basic wage scale had been in place for over forty years, the actual wages were increased on numerous occasions. At the end of each year, John Maples and Larry Bailey determined whether to increase wages for the following year.
6. Immigration enforcement at Maples Industries
Maples Industries employed a significant number of Hispanic workers over the course of the class period, and some of those employees were occasionally arrested and terminated for identity theft.
In addition to the arrest of some Maples Industries employees for identity theft, defendant Howard Moore also received notice of employees with non-matching names and Social Security numbers. Moore received an anonymous letter listing workers alleged to have false Social Security numbers.
B. Discussion
1. The INA “hiring provision”
The first RICO predicate statute relied upon by plaintiffs is the so-called “hiring provision,” which makes it illegal, “during any 12-month period, [to] knowingly hire[] for employment at least 10 individuals with actual knowledge that the individuals are aliens as described in [§ 1324(a)(3)(B)].” 8 U.S.C. § 1324(a)(3)(A) (alterations supplied). Section 1324(a)(3)(B) defines the term “alien” as meaning (1) “an unauthorized alien” who was not lawfully admitted for permanent residence or authorized to be employed, who (2) who was “brought into the United States in violation of [§ 1324(a) ].” 8 U.S.C. § 1324(a)(3)(B) (alteration supplied). The Eleventh Circuit has helpfully parsed this statutory language into its constituent elements, and clarified the relationship of the parts to one another. See Edwards v. Prime, Inc., 602 F.3d 1276, 1292-93 (11th Cir. 2010). For an employer to violate the statute, he must not only (i) hire ten individuals (ii) during any twelve-month period (iii) with actual knowledge that they are unauthorized for employment in this country, but the employer must also (iv) have actual “knowledge that the alien was brought into the country illegally.” Id. at 1293. The final element is critical, as the Eleventh Circuit noted in Edwards, because it demarcates the distinction between a crime under the INA that would be a RICO predicate act and one that would not be such an act. Id. “ ‘If the employer does not know that at least 10 of its illegal hires were ‘brought into’ the country by some third party (as opposed to walking across the border themselves, or arriving on a visitor’s or student visa and outstaying their welcome), then it has not committed a RICO predicate act by hiring them____’ ” Id. (quoting Nichols v. Mahoney, 608 F.Supp.2d 526, 534 (S.D.N.Y. 2009)).
The INA also outlaws the knowing hiring of an illegal immigrant, 8 U.S.C. § 1324a, but that crime is not a RICO predicate act. See 18 U.S.C. § 1961(1)(F) (limiting RICO liability for INA violations to violations of 8 U.S.C. §§ 1324, 1327-28). The emphasis placed upon the actual knowledge element of § 1324(a) is a central part of the congressional design of both the INA itself, and, its selective incorporation in § 1961(F) of RICO. Edwards,
“actual knowledge” must be understood to mean something more than “constructive knowledge.” This is apparent, first, from the language of § 1324(a)(3); the phrase “knowingly hire for employment at least 10 individuals with actual knowledge that [they are unauthorized]” suggests that “actual knowledge” is something more than general “knowing.” ... Additionally, the implementing regulation for 8 U.S.C. § 1324a — a closely related provision that focuses exclusively on the employment of aliens — defines “knowing” as “having actual or constructive knowledge.” 8 C.F.R. § 274a.l. This disjunctive makes no sense if constructive knowledge means the same thing as actual knowledge.
A.L.L. Masonry Construction Co., Inc. v. Omielan, No. 07-C-5761, 2009 WL 2214026, at *7 (N.D.Ill. July 23, 2009) (alteration in original).
Assuming for the sake of discussion that plaintiffs have adduced sufficient evidence to create a genuine issue of material fact about the question of whether defendants hired aliens with some form of knowledge that they were in the United States illegally, plaintiffs fail to squarely argue that defendants had actual knowledge those aliens were illegally brought into the United States, as opposed to walking cross the border, or arriving on a visitor’s visa and overstaying their welcome. In his report, Mallon wrote that he was “of the expert opinion that human resources employees of Maples falsely certified 1-9 Forms, and knowingly hired aliens who were unauthorized to work in the United States.”
Of course, this court is required to view all evidence in the light most favorable to plaintiffs. See Chapman, 229 F.3d at 1023. Thus, if plaintiffs provide evidence conflicting with defendants’ declarations, the court must give credence to that evidence, rather than defendants’ declarations. Here, however, plaintiffs provide no admissible evidence whatsoever that even remotely suggests that defendant Gina Mateo or her co-defendants had actual knowledge that any Hispanic person hired by Maples Industries had been “smuggled (‘brought’) into the United States,” much less the ten in a calendar year that the statute requires. Nichols, 608 F.Supp.2d at 534. “An employer may know that it hired illegal aliens without knowing how they made their way into the United States”; and, in that circumstance, the employer would not violate the hiring provision. Edwards, 602 F.3d at 1294.
Plaintiffs argue on the basis of the four grounds discussed in the following subsections that Gina Mateo had actual knowledge that she was hiring aliens who had been “brought into” the country illegally. The primary flaw in each of the arguments is that they are'conclusory assertions, unsupported by any evidence in the record.
Plaintiffs first assert that “Mateo’s testimony is not credible.”
“Simply put,” plaintiffs’ argument is not persuasive. The immigration status of Mateo’s parents and husband is not only entirely irrelevant to this litigation, but plaintiffs’ attempt to use it to discredit Mateo’s testimony borders on xenophobic paranoia. The suggestion that her testimony is not credible because she claimed to be unaware of an “immigration problem” appears to be rooted in the “common sense” and “common knowledge” bases on which plaintiffs rely in their other lines of argument discussed below. It clearly is not based on any admissible evidence to the contrary. Most importantly, however, credibility assessments are not proper at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n. 7 (11th Cir. 2003) (“Issues of credibility and the weight afforded to certain evidence are determinations appropriately made by a finder of fact and not a court deciding summary judgment.”). Moreover, plaintiffs’ credibility attack is based in part on defendant Gina Mateo’s responses to questions that are, at best, only marginally relevant to their claims.
Plaintiffs rely on a recent Sixth Circuit decision to support their argument that Mateo’s testimony is not credible. See United States v. Ramirez, 635 F.3d 249 (6th Cir. 2011). In that case, the Sixth Circuit affirmed Shanna Ramirez’s conviction for conspiracy, fraud, and perjury. Id. at 251-52. Ramirez, who had been employed in a role similar to the position held by Mateo, admitted to an immigration official that her employer was knowingly hiring illegal immigrants, that many employees had submitted false documents, and that she had helped her boyfriend obtain a job by submitting false documents to her employer. Id. at 252. She was called to testify before a grand jury, but in that testimony she stated that she was unaware that her boyfriend had submitted false documents, and that she had no reason to believe any employees were illegal aliens. Id. at 253. At Ramirez’s trial, the government introduced her statements to the immigration officer and her conflicting grand jury testimony, as well as employ
Plaintiffs argue that Ramirez supports their position that Mateo’s testimony is not credible and, therefore, that there is a genuine issue of material fact regarding her actual knowledge that she hired people who had been brought into the country illegally.
Plaintiffs cite Ramirez to demonstrate the validity and importance of considering circumstantial evidence in determining state' of mind, but they have provided no such circumstantial evidence. Plaintiffs argue that, under Ramirez, “a rational jury might simply find Defendant Mateo’s affidavit and testimony not credible.”
b. Plaintiffs’ “common sense” arguments
Plaintiffs made three additional arguments in support of their § 1324(a) claim that are not based upon the evidence of
Plaintiffs next argue that “the sheer number of illegal aliens” hired by defendant Gina Mateo supports a reasonable inference that she had actual knowledge as to how they entered the United States, because “[i]t is simply not plausible that” she believed so many could cross the border without assistance.
Finally, plaintiffs point to the fact that Alabama does not border Mexico. Relying here on “common sense,” plaintiffs argue that any illegal aliens hired at Maples Industries “received some transportation assistance during their journey as they did not walk to Alabama alone.”
Plaintiffs also opine that the acquisition of false papers requires assistance: an argument also made in a similar case brought by the same attorneys representing the present plaintiffs. In that case, the plaintiffs relied on several cases from other circuits that applied a broad construction to statutory language similar to the “brought into” provision of § 1324(a). This court held that those cases “certainly do not hold that assistance in obtaining stolen security numbers and other fake identification documents in order to obtain employment at the plant, once an individual has established residence in the United States, would constitute bringing in.” Hall v. Thomas, 753 F.Supp.2d 1113, 1156 (N.D.Ala. 2010) (internal quotation marks omitted, alteration supplied).
Plaintiffs also argue that a jury could find that Mateo and the other defendants were deliberately ignorant of the fact that they were hiring illegal aliens in violation of § 1324(a)(3)(A).
Plaintiffs’ reliance on “common sense” to prove “actual knowledge” seems to be an outgrowth of the difficulty in proving actual knowledge. Indeed, it is axiomatic that mental states such as “knowledge” must almost always be proven by circumstantial evidence. See, e.g., United States v. Santos, 553 U.S. 507, 521, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) (“As for the knowledge element of the money-laundering offense ... that will be provable (as knowledge must almost always be proved) by circumstantial evidence.”). Even so, as the Northern District of Illinois explained, actual knowledge in the context of Immigration and Nationality Act statutes is not equivalent to constructive knowledge. A.L.L. Masonry Construction Co., 2009 WL 2214026, at *7. For an example of circumstantial evidence that might satisfy
2. The “attestation provision”
Inasmuch as the previous lines of argument are unavailing, the ability of plaintiffs’ cause of action to survive summary judgment turns on the other alleged pattern of racketeering activity: Defendant Gina Mateo’s false attestations on 1-9 Forms in violation of 18 U.S.C. § 1546(b) (the “attestation provision”). That statute imposes criminal liability on “[w]hoever uses ... a false attestation, for the purpose of satisfying a requirement of [8 U.S.C. § 1324a(b) ].” 18 U.S.C. § 1546(b)(3) (alterations supplied). Section 1324a(b) (the “verification provision”), in turn, states that a “person or other entity hiring, recruiting, or referring an individual for employment in the United States ... must attest, under penalty of perjury and on a form designated or established by the Attorney General by regulation [ie., the Form 1-9], that it has verified that the individual is not an unauthorized alien by examining” identification documents. 8 U.S.C. § 1324a(b)(l)(A) (alteration supplied). The provision goes on to state that the “person or entity has complied with the requirement of this paragraph with respect to examination of a document if the document reasonably appears on its face to be genuine.” Id. If the prospective employee produces documents satisfying that criterion, “nothing in this paragraph shall be construed as requiring the person or entity to solicit the production of any other document or as requiring the individual [seeking employment] to produce such another document.” Id. (alteration supplied).
Plaintiffs allege two bases for Mateo’s violation of the attestation provision. They argue that, by pre-signing 1-9 Forms in batches of fifty, Mateo falsely attested, because she made the attestations before examining the documents. Additionally, they argue that the procedure by which Mateo examined the documents was inadequate under the verification provision. Defendants contest both of these theories, arguing that Mateo did not actually effect attestations until she dated the pre-signed forms, which occurred after she had examined the documents, and that she had satisfactorily complied with the verification provision.
Additionally, defendants argue that Mateo, as an employee of Maples Industries, cannot be held liable under § 1324a(b), because she is not an “employer.” Defendants argue that only employers can be liable under § 1546 and § 1324a. They argue that the “person or other entity” language in § 1324a is in place to cover types of employers, not agents of employers. Defendants argue that interpreting the statutory language to include agents “would render meaningless the phrase ‘or other entity,’ since such other entities can act only through persons they employ.”
a. Compliance with the verification provision
Plaintiffs have proffered evidence that some of the documents which Mateo accepted as proof of identification or work authorization were forgeries.
i. Statutory interpretation
In construing a statute, the court must begin with its plain text. E.g., Wyeth v. Levine, 555 U.S. 555, 599 n. 6, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (Thomas, J., concurring) (reiterating the usual “impropriety of looking beyond the plain text”).
Here, the statute to be construed provides that “[a] person or entity has complied with the requirement of this paragraph with respect to examination of a document if the document reasonably appears on its face to be genuine.” 8 U.S.C. § 1324a(b)(l)(A) (emphasis supplied). A plain language reading of those words leads to the conclusion that the statute requires only an inspection of the document itself for indicia of authenticity. The inclusion of “reasonably” indicates that it is an objective standard; some examination is required. However, the “on its face” language indicates that the inquiry need not extend beyond the four corners of the document. Thus, an identification document with a photograph that does not match the person presenting it, or one with obvious misspellings, would not “reasonably appear on its face” to be genuine. Conversely, a document that is internally consistent, but inconsistent with other information presented by a prospective employee (such as an employment application containing conflicting information), would still appear to be genuine on its face.
The Eleventh Circuit has not had the occasion to construe the relevant statutory language, but the Ninth Circuit has done so. In Collins Foods International, Inc. v. United States Immigration and Naturalization Service, 948 F.2d 549 (9th Cir. 1991), Collins Foods was accused of violating the verification provision through the
The Ninth Circuit noted that, even with the misspelling, the ALJ acknowledged that “at a glance the card on its face did not appear to be false.” Id. at 553. The court rejected the ALJ’s determination that Soto’s failure to compare the Social Security card to the example in the INS handbook violated the verification provision. The Court first observed that “nothing in the statute ... requires such a comparison.” Id. Moreover, a comparison with the handbook example would not be entirely determinative, because “[t]he handbook contain[ed] but one example of a Social Security card, when numerous versions exist.” Id. at 553 & n. 14 (“In fact, there are 16 valid versions of the Social Security card currently in circulation.”) (alterations supplied). Stating that. “[t]he card Rodriguez presented was not so different from the example that it necessarily would have alerted a reasonable person to its falsity,” the Ninth Circuit held that Collins Foods had complied with the verification provision. Id. at 553 (alteration supplied).
The Collins Foods court also discussed the legislative history of the verification provision. The court quoted from the report of the House Judiciary Committee to demonstrate “that Congress did not intend the statute to cause employers to become experts in identifying and examining a prospective employee’s employment authorization documents.” Id. at 554. That report states that there is no expectation “that employers ascertain the legitimacy of documents presented during the verification process.” H.R.Rep. No. 99-682, pt. 1, at 61. Additionally, the report stated that the “reasonable man” standard should be applied to document verification, and “emphasize[d] that documents that reasonably appear to be genuine should be accepted by employers without requiring further investigation, [sic ] of those documents.” Id. at 62 (alteration supplied). The Ninth Circuit concluded by stating that “Congress carefully crafted section 1324a to limit the burden and the risk placed on employers. The ALJ’s holding in this case places on employers a verification obligation greater than that intended by Congress and beyond that outlined in the narrowly-drawn statute.” Collins Foods, 948 F.2d at 554.
ii. Application of the statute to the facts in the record
Plaintiffs presented three types of evidence in support of their argument that defendant Gina Mateo, as “an agent ... acting ... in the interest of’ Maples Industries,
Mallon also relied on geographical discrepancies in his analysis: e.g., an employee claiming to be born in one state, but presenting a social security number originating in a different state; or an identification card issued in one state on a date the employee claimed to have resided in another.
The next type of evidence relied upon by plaintiffs is more convincing than Mallon’s conclusions regarding inconsistency across documents. Plaintiffs presented evidence of specific documents that, on their face, actually fail to meet the requirement that they reasonably appear to be genuine. Perhaps the most egregious example is that of Ismael Burgos Diaz. Burgos presented a Social Security card and a Tennessee non-driving identification card. The identification card listed his address as “80 Mimosa Road, Chatanoga, TN.”
Another case of facially questionable documents is that of Juan Irgo. Irgo wrote his name on the Form 1-9, but produced a North Carolina identification card and Social Security card bearing the name “Juan Antonio Garza, Jr.”
In sum, the evidence in the record, when viewed in the light most favorable to plaintiffs, suggests that Mateo’s inspection of the documents may not have met even the low standard set by the verification provision. That is, even though many of the documents may have appeared genuine on their face, Mateo never actually inspected them to confirm that facial validity. Mateo’s testimony regarding the process of collecting, photocopying, and inspecting the documents is disjointed and somewhat contradictory. She testified that she looked only at the photographs on the identification cards, but also that the purpose of inspection is making sure the names and dates of birth match the information the employees provide.
The RICO “attestation provision,” 18 U.S.C. § 1546(b), creates criminal liability for anyone using a “false attestation” to satisfy a requirement of § 1324a(b). 18 U.S.C. § 1546(b)(3). While the verification provision explicitly limits the examination required of documents, the language of the attestation provision makes clear the broad scope of liability — that is, any “false attestation” is a violation of the statute, even if the inspection of the documents was adequate to satisfy the verification provision.
In addition to deficiencies with individual documents, plaintiffs point to Gina Mateo’s act of pre-signing of 1-9 Forms in batches of fifty as support for the argument that her attestations were false in violation of § 1546(b)(3). Plaintiffs argue that, by signing the forms before filling them with the employees’ information, Mateo made false attestations. Defendants counter by arguing that Mateo’s attestations did not become effective until she dated them: an action she did not take until the verification process was complete. In other words, pre-signing cannot constitute a false attestation, because it is not any attestation at all. Mateo pre-signed hundreds of 1-9 Forms over the course of the relevant period.
In stating that false attestation is punishable by fine or imprisonment, § 1546(b) does not define the requirements for a valid attestation, or provide a definition of “false.” Section 1324a(b) does little to clarify the picture, adding only the requirement that the attestation be “under penalty of perjury and on a form designated or established by the Attorney General by regulation.” 8 U.S.C. § 1324a(b)(l)(A). Defendants cite 28 U.S.C. § 1746 in support of their argument that a signature without a date is not an attestation and, thus cannot be a false attestation. That statute provides that an “unsworn declaration, certificate, verification, or statement” is equally as effective as a sworn one, provided it is “in writing of such person which is subscribed by him, as true under penalty of perjury, and dated....” 28 U.S.C. § 1746. The statute goes on to prescribe the general form required: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).” Id.
The attestation clause on the Form 1-9 is essentially a wordier version of the form prescribed in § 1746, including statements regarding the penalty of perjury and the truth of the information on the form.
c. Damages and proximate cause
In order to maintain a civil RICO claim, a plaintiff must demonstrate that he or she suffered damages actually and proximately caused by the defendants’ actions. The RICO statute provides that “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court____” 18 U.S.C. § 1964(c) (alteration supplied). The Supreme Court has interpreted that language to require proximate causation. Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992). Here, plaintiffs allege that Mateo’s false attestations on hundreds of 1-9 Forms caused a decrease in their wages. They argue that the influx of illegal immigrants to the Maples Industries workforce made it possible for the company to meet its staffing needs without increasing wages. In response, defendants argue that the act of falsely attesting is too far attenuated from plaintiffs’ wages to proximately cause a wage reduction.
Plaintiffs argue that the Eleventh Circuit’s decision in Williams “held that ... false attestation violations under RICO proximately cause depressed wages.”
This action, unlike Williams, is before the court at the summary judgment stage. Therefore, plaintiffs’ allegation of a sufficiently direct relation between false attestations and depressed wages is not sufficient; there must be evidence in the record to support proximate causation. Here, there is evidence that Mateo falsely attested in completing hundreds of 1-9 Forms.
IV. CONCLUSION
For the foregoing reasons, defendants’ motion to strike is due to be GRANTED in part and DENIED in part. Defendants’ motion for summary judgment is also due to be GRANTED, and all claims dismissed with prejudice. Plaintiffs’ motion for class certification will be DENIED as moot.
. See doc. no. 1 (Complaint) ¶¶4-10. Mark Maples initially was named as a defendant as well, but he was dismissed from the case on July 28, 2010. Doc. no. 75 (Order Dismissing Fewer Than All Defendants). Audrey Broussard-Wadkins married after the complaint was filed and adopted a hyphenated surname, Doc. no. 78-20 (Audrey Broussard-Wadkins Dep., Dec. 29, 2009), at 46-47.
. Doc. no. 1 (Complaint) ¶ 2.
. Id. ¶1.
. Doc. no. 66.
. Doc. no. 82.
. Doc. no. 67.
.18 U.S.C. § 1963(a) provides, in part, that "[w]hoever violates any provision of section 1962 of this chapter shall be fined under this title or imprisoned not more than 20 years (or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment)....” The statute also provides for extensive forfeiture sanctions. Seeid.§§ 1963(a)(l)-(a)(3).
. Doc. no. 1 (Complaint) V 2.
. See, e.g., Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
. Additional factors a district court may consider include:
(1) Whether the expert is proposing to testify about matters growing naturally and directly out of research he has conducted independent of the litigation, or whether he has developed his opinion expressly for purposes of testifying;
(2) Whether the expert has unjustifiably extrapolated from an accepted to an unfounded conclusion;
(3) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting;
(4) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.
Fed.R.Evid. 702 advisory committee’s note to 2000 amends, (internal citations omitted).
. Doc. no. 78-13 (Expert Report of Edward Mallon), at 1.
. Id.
. Id.
. Id.
. Id. at 2.
. Id.
. Doc. no. 78-13 (Expert Report of Edward Mallon), at 2-3.
. Id. at 3, 6. Thus, he examined the files of roughly one-fifth of the hourly employees. The "class period” is the period within the four-year statute of limitations — that is, the four years preceding the date on which the complaint was filed: i.e., Aug. 4, 2005 to Aug. 4, 2009. See doc. no. 1 (Complaint) ¶ 1.
. Doc. no. 78-13 (Expert Report of Edward Mallon), at 3.
. Id.
. id.
. Id. For a detailed discussion of the Form 1-9, see Part 111(C)(2)(a), infra.
. Doc. no. 78-13 (Expert Report of Edward Mallon), at 3.
. Id.
. Id. The Social Security Administration allots a range of numbers to each state or territory to assign, so the number assigned to an individual is indicative of the issue location. See doc. no. 78-16 (Appendices to Expert Report of Edward Mallon) at App’x 2 (Social Security Number Allocations).
. Doc. no. 78-13 (Expert Report of Edward • Mallon), at 3.
. Id. (alteration supplied).
. Id.
. Id. at 4 (alteration supplied).
. Id.
. Id.
. Doc. no. 78-13 (Expert Report of Edward Mallon), at 4-5.
. Id.
. Id. at 6 (alteration supplied).
. Id. In his report, Mallon actually stated that 140 of the employees were unauthorized, but one of the workers he identified as illegal actually was hired prior to the class period. Thus, the court will treat his report as concluding that 139 of 840 workers were illegal, rather than 140 of 841. See doc. no. 78-18 (Lance V. Oliver Decl.) ¶ 2 & n. 1.
. Doc. no. 78-13 (Expert Report of Edward Mallon), at 6
. Id. (alteration supplied).
. Id. at 2.
. Id. at 2-3.
. The description of the assistance illegal aliens often receive follows shortly after his statement that the individuals studied in the report entered the country illegally.
. The importance of this distinction is discussed in Part 111(C)(1) of this opinion, infra.
. Doc. no. 78-13 (Expert Report of Edward Mallon), at 4 (alteration supplied).
. Doc. no. 83 (Brief in Support of Motion to Strike), at 9.
. Id. at 10.
. Id. at 9-10.
. Id. at 10 (quoting doc. no. 78-13 (Expert Report of Edward Mallon), at 2).
. “Ipse dixit," Latin for "he himself said it," refers to something asserted but not proved. See Black’s Law Dictionary 847 (9th ed. 2009).
. See doc. no. 87 (Brief in Opposition to Motion to Strike), at 11 (stating that defendants "ignore altogether in their motion” the table of employee data in Mallon's report).
. Doc. no. 83 (Brief in Support of Motion to Strike), at 11.
. Plaintiffs state that Mallon used a technique called "systematic sampling” to select which files to review. Doc. no. 87 (Brief in Opposition to Motion to Strike), at 14. That process is described in the statistics treatise as follows:
Systematic sampling draws only the first number randomly. Then, each of the other subjects are [sic ] drawn according to some predetermined plan, such as every tenth person. This sampling technique is usually used when there is a large sample to be drawn as it saves time.
Isadore Newman, Carole Newman, Russell Brown & Sharon McNeely, Conceptual Statistics for Beginners 6 (Lanham, Md.: University
. See note 50, supra.
. Doc. no. 83 (Brief in Support of Motion to Strike), at 15-16.
. Doc. no. 78-13 (Expert Report of Edward Mallon), at 5.
. Id. at 6.
. Id.
.In fact, the other evidence in the record indicates that Mateo pre-signed the forms, and that she made at least a cursory inspection of the documents. See Part 111(B)(3) of this opinion, infra. Pre-signing the forms, although improper, does not preclude the possibility of inspection of the documents.
. Doc. no. 78-13 (Expert Report of Edward Mallon), at 6.
. Doc. no. 78-17 (Expert Report of Dr. George J. Borjas) ¶ 1.
. Id.
. Id.
. Id.
. Id.
. Doc. no. 83 (Brief in Support of Motion to Strike), at 20-21 (emphasis in original).
. Doc. no. 89 (Reply Brief in Support of Motion to Strike), at 23.
. Doc. no. 78-17 (Expert Report of Dr. George J. Borjas) ¶¶ 58-59. Dr. Borjas actually limited his report to the data Mallon produced in his random sampling of employment files, ignoring the 150 files that were not randomly selected. Id. ¶ 60
.Id. ¶ 9.
. Id. ¶ 10 (alteration supplied).
. Id. ¶ 11.
. Id. ¶ 13.
. Doc. no. 78-17 (Expert Report of Dr. George J. Borjas) ¶ 14.
. Id. ¶ 15.
. Id. ¶ 18.
. Id.
. Id. ¶ 19.
. Id. W 21-22.
. Doc. no. 78-17 (Expert Report of Dr. George J. Borjas) ¶¶ 23-24.
. Id. ¶ 25.
. Id.
. Id. ¶ 27.
. Id. ¶¶ 27-31.
. Id. ¶ 31.
. Doc. no. 78-17 (Expert Report of Dr. George J. Borjas) ¶ 32.
. Id.
. Id. ¶ 33.
. Id. ¶ 34.
. Id.
. Id. Dr. Borjas did not explain the purpose of using the logarithm of the hourly wage, rather than simply the average wage itself. He similarly used logarithms in his analysis of wage elasticity. Id. ¶ 43.
. Doc. no. 78-17 (Expert Report of Dr. George J. Borjas) ¶ 34.
. Id. (alteration supplied). Dr. Borjas also performed the same procedure using a “fixed weight” methodology to account for changing job titles at Maples, with similar results. Id. ¶ 35.
. Id. ¶ 36.
. Id.
. Id. ¶¶ 37-38.
. Doc. no. 78-17 (Expert Report of Dr. George J. Borjas) ¶ 40.
. - Id. ¶ 41.
. Id. ¶ 44.
. Id. ¶ 45.
. Id.
. Id.
. Doc. no. 78-17 (Expert Report of Dr. George J. Borjas) ¶ 46.
. Id. ¶ 49.
. Id. ¶ 50.
. See id. ¶ 51.
. Id.
. See id. Dr. Borjas’s method also accounted for aggregate economic conditions. Doc. no. 78-17 (Expert Report of Dr. George J. Borjas) ¶ 54.
. Id. ¶ 55. Dr. Borjas also ran the regression using the "fixed weight” method to account for changing job titles and concentrations of workers in different roles within the Maples Industries workforce, with similar results. Id. ¶ 56.
. Id. ¶ 55.
. Id.
. Id.
. Doc. no. 78-17 (Expert Report of Dr. George J. Borjas) ¶ 55
. Id. ¶ 57.
. Id.
. Id. ¶¶ 59-60. Dr. Borjas used only the randomly selected portion of Mallon’s data, and multiplied the numbers by five to account for the one-fifth sample size. Id. ¶¶ 59-60 & n. 51.
. Id. ¶ 60.
. Doc. no. 78-17 (Expert Report of Dr. George J. Borjas) ¶ 60.
. Id.
. Id. ¶64.
. Id. ¶¶7, 64.
. Id. ¶ 65.
. Doc. no. 83 (Brief in Support of Motion to Strike), at 20-21; doc. no. 89 (Reply Brief in Support of Motion to Strike), at 22-24.
.In fact, Dr. Borjas specifically excluded companies that paid substantially higher wages. Doc. no. 78-17 (Expert Report of Dr. George J. Borjas) ¶ 24 n. 14.
. Id. n 32-33.
. Id. ¶ 45.
. Id.
. Id. ¶ 46.
. Id. ¶ 20.
. Doc. no. 78-17 (Expert Report of Dr. George J. Borjas) ¶ 11.
. Id.
. Id. ¶ 13.
. Although the "market power” opinion in Dr. Borjas's report was not plagued by the same problems as the other parts of the report, that opinion, standing alone, would not aid the jury. The record contains uncontroverted evidence that Maples Industries sets its wages independent of external factors, such as the wages offered at other local employers.
. Rule 56 was amended, effective December 1, 2010, in conjunction with a general overhaul of the Federal Rules of Civil Procedure. The Advisory Committee was careful to note, however, that the changes "will not affect continuing development of the decisional law construing and applying these phrases.” Adv. Comm. Notes to Fed.R.Civ.P. 56 (2010 Amends.). Consequently, cases interpreting the previous version of Rule 56 are equally applicable to the revised version.
. Doc. no. 66-2 (Evidentiary Submission in Support of Summary Judgment), at Ex. A (Wade Maples Decl.) ¶¶ 2-3.
. Doc. no. 78-28 (John Maples Dep., May 27, 2010), at 57-58.
. Doc. no. 66-2 (Evidentiary Submission in Support of Summary Judgment), at Ex. A (Wade Maples Decl.) ¶ 4; doc. no. 78-27 (Wade Maples Dep., May 28, 2010), at 14, 21-24; doc. no. 78-28 (John Maples Dep., May 27, 2010), at 12-13.
. Doc. no. 66-2 (Evidentiary Submission in Support of Summary Judgment), at Ex. B. (John Maples Decl.) ¶ 2. Mark Maples, formerly a defendant in this case, also owned stock in the company. It is unclear from the record what percentage Wade, John, and Mark Maples each owned, but it seems that Wade owned the largest share (though perhaps not a majority), and Mark the smallest. See doc. no. 78-27 (Wade Maples Dep., May 28, 2010), at 14, 21-24; doc. no. 78-28 (John Maples Dep., May 27, 2010), at 12-13.
. Doc. no. 78-27 (Wade Maples Dep., May 28, 2010), at 18-19; doc. no. 78-28 (John Maples Dep., May 27, 2010), at 71.
. See doc. no. 78-28 (John Maples Dep., May 27, 2010), at 67-68; doc. no. 78-30 (Betty Jo Price Dep., June 8, 2010), at 28 ("Q: How do you know John? A: Because he is in and out through the plant all during the day.”); doc. no. 78-31 (Frances Dolores Thomas Dep., June 11, 2010), at 50-51 (testifying that John Maples "goes around checking everything” to ensure that the plant is functioning as it should); doc. no. 78-25 (Elizabeth Bullock Dep., June 9, 2010), at 35, 47 (testifying that John Maples spends time observing production employees in the plant).
. Doc. no. 78-25 (Elizabeth Bullock Dep., June 9, 2010), at 35 (testifying that Wade Maples walks around the plant and watches workers); doc. no. 78-35 (Darlene Harbin Dep., Dec. 29, 2009), at 46 (testifying that she saw Wade Maples "just about every day” on her shift); doc. no. 78-36 (Colleen Marie Voight Dep., June 8, 2009), at 24-25 (testifying that she knew who Wade Maples was "from seeing him at the plant, walking through”).
. Doc. no. 78-2 (Howard Moore Dep., May 25, 2010), at 19.
. Id.
. Id. at 20.
. Doc. no 78-28 (John Maples Dep., May 27, 2010), at 71-72; doc. no. 78-2 (Howard Moore Dep., May 25, 2010), at 13; doc. no. 78-27 (Wade Maples Dep., May 28, 2010), at
. Doc. no. 78-9 (Regina Mateo Dep., May 24, 2010), at 74.
. Id. at 59-61. Thus, she has been employed as a Personnel Clerk for the entirety of the class period, which began on August 4, 2005. See Complaint ¶ 1.
. Doc. no. 78-2 (Howard Moore Dep., May 25, 2010), at 54, 59.
. Doc. no. 78-9 (Regina Mateo Dep., May 24, 2010), at 60.
. See doc. no. 78-20 (Audrey Broussard-Wadkins Dep., Dec. 29, 2009), at 13 (testifying that she was born in Biloxi, Mississippi).
. Id. at 16 (layoff), 24, 30 (hire).
. Doc. no. 78-35 (Darlene Harbin Dep., Dec. 29, 2009), at 27, 110. Harbin's deposition testimony does not address her authorization to work in the United States, but defendants do not challenge it.
. Id. at 19-20.
. Doc. no. 78-2 (Howard Moore Dep., May 25, 2010), at 47-48. Broussard-Wadkins testified that the workforce was 80% Hispanic when she began her employment in 2005, and that percentage remained high when she was laid off in 2009. Doc. no. 78-20 (Audrey Broussard-Wadkins Dep., Dec. 29, 2009), at 75-76. Plaintiffs cite the 20% figure in their statement of undisputed material facts, and defendants do not dispute that number. See doc. no. 77 (Brief in Opposition to Summary Judgment), at 9. Therefore, the court will adopt the 20% figure.
. Doc. no. 78-2 (Howard Moore Dep., May 25, 2010), at 31.
. See id. at 147-48; doc. no. 78-20 (Audrey Broussard-Wadkins Dep., Dec. 29, 2009), at 88, 90-91.
. Doc. no. 78-20 (Audrey Broussard-Wadkins Dep., Dec. 29, 2009), at 88, 90-91.
. See Doc. no. 78-32 (Email Exchange Among Howard Moore, John Maples, and Charlotte McDowell) (discussing the desirability of hiring a bilingual Hispanic worker to
. Doc. no. 66-2, at Ex. D (Howard Moore Decl.) ¶ 4; doc. no. 78-2 (Howard Moore Dep., May 25, 2010), at 116-17. Moore’s deposition testimony did not cover the hiring process in a linear, chronological manner, but plaintiffs did not dispute the description of the process provided in his declaration and repeated in defendants’ undisputed material facts.
. Doc. no. 66-2, at Ex. D (Howard Moore Deck) ¶ 4; doc. no. 78-3 (Howard Moore Dep., May 25, 2010), at 204-05.
. Doc. no. 66-2, at Ex. D (Howard Moore Deck) ¶ 4; doc. no. 78-3 (Howard Moore Dep., May 25, 2010), at 197.
. Doc. no. 66-2, at Ex. D (Howard Moore Deck) ¶ 4; doc. no. 78-3 (Howard Moore Dep., May 25, 2010), at 197.
. Doc. no. 66-2, at Ex. D (Howard Moore Deck) ¶ 4; doc. no. 78-2 (Howard Moore Dep., May 25, 2010), at 117-19. Moore testified that there are no set criteria for who is chosen to be interviewed.
. Doc. no. 66-2, at Ex. D (Howard Moore Deck) ¶ 4.
. Id.
. Id. ¶ 5
. Id. ¶ 8. E-Verify is used after employee orientation and completion of the Form 1-9. Doc. no. 78-3 (Howard Moore Dep., May 25, 2010), at 232.
. Doc. no. 66-2, at Ex. D (Howard Moore Deck) ¶ 8.
. Id.
. Id. ¶5.
. Id. ¶ 6.
. Id. Plaintiffs disputed defendants' assertion that new hires are already employees at the time of orientation, but did not dispute the fact that the Personnel Clerks conduct the orientations.
. Doc. no. 78-3 (Howard Moore Dep., May 25, 2010), at 128.
. Doc. nos. 78-2 & 78-3 (Howard Moore Dep., May 25, 2010), at 127-28.
. See doc. no, 78-6 (Exhibits to Howard Moore Dep., May 25, 2010) at Ex. 33 (Blank Form 1-9) ECF 8 (“The purpose of this form is to document that each new employee (both citizen and noncitizen) hired after November 6, 1986, is authorized to work in the United States.”); doc. no. 78-2 (Howard Moore Dep., May 25, 2010), at 75.
. See doc. no. 78-6 (Exhibits to Howard Moore Dep., May 25, 2010) at Ex. 33 (Blank Form 1-9) ECF 10 ("Section 1. Employee Information and Verification. (To be completed and. signed by the employee at the time employment begins.)") (emphasis in original); doc. no. 78-3 (Howard Moore Dep., May 25, 2010), at 128 (noting that new employees "fill out the documents that they need to fill out, W-4's ... I-9's”).
. Doc. no. 78-3 (Howard Moore Dep., May 25, 2010), at 134, 228-29; doc. no. 78-6 (Exhibits to Howard Moore Dep., May 25, 2010) at Ex. 33 (Blank Form 1-9) ECF 8 ("Employers must complete Section 2 by examining evidence of identity and employment authorization within three business days of the date employment begins.”) & 10 ("Section 2. Employer Review and Verification (To be completed and signed by employer ....)”) (emphases in original). Employees must present documents to establish two separate facts: their identity, and their right to work in the United States. Doc. no. 78-6 (Exhibits to Howard Moore Dep., May 25, 2010) at Ex. 33 (Blank Form 1-9) ECF 11. Some documents establish both, e.g., a United States passport. Id. Others only satisfy one requirement, and must be presented with an additional document to satisfy the other. A common example is the combination of a state-issued identification card (identification) and a Social Security card (authorization). An employer cannot require specific documents, i.e., an employer cannot demand that an employee provide a birth certificate instead of Social Security card. Id. at ECF 8 ("Employers cannot specify which document(s) listed on the last page of Form 1-9 employees present to establish identity and employment authorization.”).
.Doc. no. 78-6 (Exhibits to Howard Moore Dep., May 25, 2010) at Ex. 33 (Blank Form I-9) ECF 10.
. Id.
. Doc. no. 78-33 (Responses to Interrogatories, John Maples), at Response No. 6 ("Maples has no written policies or procedures with respect to completing 1-9 forms and verifying employment eligibility, but follows the procedures and requirements contained in the instructions with the 1-9 forms.”).
. Id. at Response Nos. 4-5; doc. no. 78-34 (Responses to Interrogatories, Wade Maples), at Response Nos. 4-5.
. Doc. no. 78-2 (Howard Moore Dep., May 25, 2010), at 64.
. Doc. no. 78-10 (Regina Mateo Dep., May 24, 2010), at 101-03.
. Id. at 101-02.
. Id. at 103-04.
. Doc. no. 78-2 (Howard Moore Dep., May 25, 2010), at 89; doc. no. 78-10 (Regina Mateo Dep., May 24, 2010), at 103-05.
. Doc. no. 78-10 (Regina Mateo Dep., May 24, 2010), at 126-27 ("Q: When you got their ID's, would you inspect them? A; I would look at the pictures.... Q: Did you look in addition to the pictures at the type [i.e., writing] on the card? ... A; No.”) (alteration supplied). Mateo's testimony regarding the 1-9 process was unclear and somewhat contradictory. The description that follows is based on the information the court was able to rely upon with some certainty.
. Id. at 120-21, 128 (“Q: And what’s the purpose of looking at their documents? What is your knowledge of that; why is that required? A: Just to make sure that it’s the person’s picture on there and their information, their name and date of birth.").
. Id. at 152. It is unclear whether she looked at this information on the documents, or on the photocopies she made after checking the pictures.
. Id. at 153-54.
. Id. at 191-92; doc. no. 78-11 (Regina Mateo Dep., May 24, 2010), at 203.
. Doc. no. 78-10 (Regina Mateo Dep., May 24, 2010), at 106.
. Id. at 146, 148.
. Doc. no. 78-11 (Regina Mateo Dep., May 24, 2010), at 204 ("Q: Do you have any reason to believe that Howard Moore ... disagrees with any manner of how you conduct your job? A: Disagrees? Q: Yes, do you have any reason to think he is unhappy with the way you do your job? A: I don’t know. Q: Has he told you that he ... disagreed with or disapproved of something you were doing? A: No.”)
. See doc. no. 78-40 (Form 1-9 and Documents, Ismael Burgos Diaz) (emphasis supplied); doc. no. 78-10 (Regina Mateo Dep., May 24, 2010), at 168-72.
. Doc. no. 78-10 (Regina Mateo Dep., May 24, 2010), at 175.
. Id. at 176.
. Doc. no. 78-2 (Howard Moore Dep., May 25, 2010), at 69.
. Doc. no. 78-7 (Exhibits to Howard Moore Dep., May 25, 2010) at Ex. 67 (Form 1-9 and Documents, Juan Irgo) ECF 8-9; see also doc. no. 78-3 (Howard Moore Dep., May 25, 2010), at 163-69, 175-76.
. Doc. no. 78-3 (Howard Moore Dep., May 25, 2010) at 176.
. Doc. no. 78-13 (Expert Report of Edward Mallon), at 3.
. Id. For a full description of Mallon’s methodology, see Part 11(B)(3) of this opinion, supra.
. See doc. no. 78-17 (Expert Report of Dr. George J. Borjas) ¶ 59 (analyzing Mallon's results).
. Doc. no. 78-18 (Lance V. Oliver Decl.) ¶¶ 3-4.
. See, e.g., doc. no. 66-2 (Evidentiary Submission in Support of Summary Judgment), at Ex. D (Howard Moore Deck) ¶ 3.
. Doc. no. 78-28 (John Maples Dep., May 27, 2010), at 95.
. Id. at 94-95.
. See doc. no. 78-29 (John Maples Dep., May 27, 2010), at 112-13. Not every job category has a wage increase at each 30 day interval. See doc. no. 78-37 (Job Pay Scales).
. Doc. no. 78-29 (John Maples Dep., May 27, 2010), at 119-20; see also doc. no. 78-27 (Wade Maples Dep., May 28, 2010), at 47-48.
. Doc. no. 78-29 (John Maples Dep., May 27, 2010), at 121.
. See doc. no. 78-27 (Wade Maples Dep., May 28, 2010), at 43. See also doc. no. 78-28 (John Maples Dep., May 27, 2010), at 98.
. Doc. no. 78-28 (John Maples Dep., May 27, 2010), at 97; doc. no. 78-29 (John Maples Dep., May 27, 2010), at' 105-06.
. Doc. no. 78-29 (John Maples Dep., May 27, 2010), at 106-07.
. Doc. no. 78-27 (Wade Maples Dep., May 28, 2010), at 38-40 (“[I]f your pay is a certain amount, and we are giving a three percent increase or five percent increase, we add that to your pay, and that is your pay for the next year.”); doc. no. 78-29 (John Maples Dep., May 27, 2010), at 104-05 (”[W]e would come up with a sort of a flat number of cents per hour that we would add to all hourly employees’ pay.”). Occasionally, the company will raise the wage of an individual category or job type in order to attract workers to fill a particular need, but only as a "last resort.” Id. at 102-03.
. Doc. no. 78-29 (John Maples Dep., May 27, 2010), at 135-36.
. Id. at 135-37 (alteration supplied).
. See doc. no. 78-27 (Wade Maples Dep., May 28, 2010), at 43.
. Id. at 45.
. Doc. no. 78-37 (Job Pay Scales); see also doc. no. 78-29 (John Maples Dep., May 27, 2010), at 124, 126-27.
. Doc. no. 78-3 (Howard Moore Dep., May 25, 2010), at 152 ("I found out that sometime[s] the Social Security didn’t match and I found out that people have been — we have had the police in and arrested people for stealing someone's identity.... It's probably happened five or six times.”) (alteration supplied); id. at 159-60 (”Q: How many people have terminated for identity theft, roughly? A: Seven, eight.”).
. Id. at 153.
. Id. at 153-55.
. Id. at 156-58.
. Id. at 158.
. Doc. no. 78-27 (Wade Maples Dep., May 28, 2010), at 36-37.
. Doc. no. 78-25 (Elizabeth Bullock Dep., June 9, 2010), at 17 (“Well, it was going around the plant as rumors that they were going to come in and raid the place. And the day it was supposed to happen or whatever, half of them [workers who could not speak English well] didn't show up. And we had a lot of work. We couldn't get our hot orders out. We couldn’t stay caught up. So it was — You know, we couldn’t get stuff we were supposed to get out that day.”) (alteration supplied); id. at 43-45 (same); doc. no. 78-26 (Robert Wayne Bullock Dep., June 7, 2010), at 33-34 ("Q: What happened on the days of the supposed raids at Maples? A: Some went home. Some didn’t come in. Some of the Spanish [speakers] laid out.”) (alteration supplied).
. Doc. no. 78-3 (Howard Moore Dep., May 25, 2010), at 236-38.
. Id. at 240.
. Id. at 241.
. Id.
. Id. at 244-45 (alteration supplied).
. Id. at 248.
. Doc. no. 78-3 (Howard Moore Dep., May 25, 2010), at 250.
. Doc. no. 78-13 (Expert Report of Edward Mallon), at 6.
. See, e.g., doc. no. 66-2 (Evidentiary Submission in Support of Summary Judgment), at Ex. D (Howard Moore Decl.) ¶ 3.
. Doc. no. 77, at 15.
. Doc. no. 78-9 (Regina Mateo Dep., May 24, 2010), at 21, 24, 29.
. Doc. no. 78-11 (Regina Mateo Dep., May 24, 2010), at 222-23.
. Doc. no. 78-9 (Regina Mateo Dep., May 24, 2010), at 32 (alternation supplied).
. Doc. no. 77, at 16.
. Here, at most, plaintiffs have shown that Mateo testified inconsistently regarding the immigration status of her parents and husband. Such an inconsistency does not create a genuine issue of material fact.
.A defendant cannot be convicted based solely on his uncorroborated statements or confessions. Smith v. United States, 348 U.S. 147, 153-54, 75 S.Ct. 194, 99 L.Ed. 192 (1954).
. Doc. no. 100 (Plaintiffs’ Supplemental Authority in Opposition to Summary Judgment), at 2.
. Id.
.Plaintiffs stated that "[c]ourts frequently invoke common sense propositions, and have done so on immigration issues.” Doc. no. 77 (Brief in Opposition to Summary Judgment), at 16 n. 3 (alteration supplied). They cite only NLRB v. Sure-Tan, Inc., 672 F.2d 592, 601 n. 14 (7th Cir. 1982). Sure-Tan involved an employer’s retaliation against employees for union activity; the company reported the illegal status of some of its employees to INS. Id. at 601. However, the employer was not facing immigration charges in the case. Instead, the issue was whether illegal immigrants were protected under employment laws and entitled to relief, such as backpay, as restitution for the employer’s retaliation.
In the footnote plaintiffs cite, the Seventh Circuit stated that the company could not wash its hands of the immigration violations of its employees, as it would be implausible that the employer would not at least suspect some of the workers were illegal. In other words, an employer cannot hire illegal immigrants, mistreat them, and then hide behind the fact that they cannot legally work here in the first place when sued for mistreating them. In no way does the Sure-Tan footnote suggest that such "common sense” suspicions could amount to evidence sufficient to satisfy a statutory "actual knowledge” element.
Plaintiffs' citation to Ramirez for the proposition that "common sense” obviates the need to prove “actual knowledge” is likewise ill-founded. Moreover, both Sure-Tan and Ramirez applied "common sense” to impute knowledge of immigration status, not to impute knowledge that somebody had been brought into the United States.
. Doc. no. 77 (Brief in Opposition to Summary Judgment), at 16 (citing Expert Report of Edward Mallon, at 2-3).
. Id. at 16-17 (alteration supplied).
. Id. at 17 (emphasis in original).
."Common sense” would also dictate that an illegal immigrant could purchase a bus ticket from a border state to Alabama. The transportation "assistance” rendered by the ticket agent (who has no obligation or authority to check immigration papers) would certainly not constitute an act satisfying the statutory requirement.
. Doc. no. 77 (Brief in Opposition to Summary Judgment), at 17-19.
. Id. at 18.
. Doc. no. 78-13 (Expert Report of Edward Mallon), at 2.
. Doc. no. 66-1 (Brief in Support of Summary Judgment), at 13.
. See generally doc. nos. 78-13 through 78-16 (Expert Report of Edward Mallon).
. See also, e.g., Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.”) (internal citations and quotation marks omitted); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1185 (11th Cir. 1997) (“In construing a statute we must begin, and often should end as well, with the language of the statute itself.”). "In [this] circuit, '[w]hen the import of the words Congress has used is clear ... we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language.’ ” Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1167 (11th Cir. 2003) (quoting United States v. Weaver, 275 F.3d 1320, 1331 (11th Cir. 2001)) (first alteration supplied, second alteration in Shotz).
. See 8 C.F.R. § 274a. 1(g).
. See doc. no. 78-13 (Expert Report of Edward Mallon), at 4-5.
. See id.
. Id. at 4-6.
. See, e.g., id. at 9 (Analysis of Employee Philip Aleman).
. 8 U.S.C. § 1324a(b)(l)(A).
. The attestation paragraph on the Form I-9 also states that in addition to being genuine, the documents "relate to the employee” tendering them. Doc. no. 78-6 (Exhibits to Howard Moore Dep., May 25, 2010) at Ex. 33 (Blank Form 1-9) ECF 10. This requirement ensures that the name and any picture on the document matches the employee, preventing employers from accepting genuine documents that clearly do not belong to the employee. To suggest that it creates an affirmative duty to make further inquiries is to contradict the plain language of the verification provision, as discussed supra.
. In his review of 840 Maples Industries personnel files, Mallon identified 139 employees to be unauthorized to work in the United States. Doc. no. 78-13 (Expert Report of Edward Mallon), at 6. In almost every instance, his determination was based on some inconsistency between the documents and information in the employee personnel file. His report only identifies 18 instances of documents that have some defect on their face. See id. at 6-69. Of those, 5 are incorrectly posed photographs, and 13 are persons claiming nonexistent immigration classifications. Id. Under Collins Foods, the latter group arguably does not fall within the definition of facially invalid documents.
. See doc. no. 78-40 (Form 1-9 and Documents, Ismael Burgos Diaz) (emphasis supplied).
. Doc. no. 78-2 (Howard Moore Dep., May 25, 2010), at 69.
. Doc. no. 78-7 (Exhibits to Howard Moore Dep., May 25, 2010) at Ex. 67 (Form 1-9 and Documents, Juan Irgo) ECF 8-9.
. Compare doc. no. 78-10 (Regina Mateo Dep., May 24, 2010), at 152 ("Q: That’s all you look to see is if the picture matches the face right?” "A: Yes.”) with id. at 121 ("Q: And what’s the purpose of looking at the documents? What is your knowledge of that; why is that required?” "A: Just to make sure it’s the person’s picture on there and their information, their name and date of birth.”).
.See generally id. at 120, 124-25.
. Id. at 101-04.
. The full text of the attestation clause reads:
I attest, under penalty of perjury, that I have examined the document(s) presented by the above-named employee, that the above-listed document(s) appear to be genuine and relate to the employee named, that the employee began employment on {month!day/year)__ and that to the best of my knowledge the employee is authorized to work in the United States.
Doc. no. 78-6 (Exhibits to Howard Moore Dep., May 25, 2010) at Ex. 33 (Blank Form I-9) ECF 10.
. Doc. no. 77 (Brief in Opposition to Summary Judgment), at 24 (citing Williams, 465 F.3d at 1288-89).
. See Part 111(C)(2)(b) of this opinion, supra.
Reference
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