No. 15-_____

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Petitioner v.

KOCH FOODS OF MISSISSIPPI, LLC, Defendant-Respondent

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.

1. Judge Daniel P. Jordan III

2. Magistrate Judge F. Keith Ball

3. Plaintiff-Petitioner Equal Employment Opportunity Commission (“EEOC”)

4. Individual Plaintiffs and Intervenors

Agustin Barragan-Davalos

Aracely Calderon-Cortez

Erwin Castillo-Lopez

Ivone Castillo-Lopez

Maria Cazorla

Jose Luis Cordero-Toledo

Hidalia (or Idalia) Domingo-Maldonado

Mardoqueo Ariel Lopez-Lopez

Magnolia Perez-Hernandez

Jose Dolores Rivera-Aranda

Alma Roxana Roblero-Aguilar

5. Defendant-Respondent Koch Foods of Missisippi, LLC (“Koch Foods”)

6. Defendant Jessie Ickom

7. Aggrieved Individuals

Classes of Hispanic and female employees who were employed with Koch Foods between approximately 2004 and 2008 and who were subject to harassment on the basis of race/national origin (Hispanic), and/or harassment on the basis of sex (female), and/or retaliation in violation of Title VII of the Civil Rights Act of 1964. See No. 10-cv-135, Docket No. 384 ¶87.

8. Amicus Curiae Southern Poverty Law Center

9. Attorneys for Plaintiff-Petitioner EEOC

Julie Steptoe Bean - Administrative Judge (formerly Supervisory Trial Attorney), EEOC

Lorraine C. Davis - Assistant General Counsel, EEOC

Jennifer S. Goldstein - Associate General Counsel, EEOC

Anne W. King - Attorney, EEOC

Ylda Marisol Kopka - Supervisory Trial Attorney, EEOC

P. David Lopez - General Counsel, EEOC

Marsha Lynn Rucker - Supervisory Trial Attorney, EEOC

C. Emanuel Smith - Regional Attorney, EEOC

Christina Andrea Vigil - Senior Trial Attorney, EEOC

10. Attorneys for Defendant-Respondent Koch Foods

Jeremy M. Clay - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Nakimuli O. Davis-Primer - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Adam H. Gates - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Russell W. Gray - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Jennifer G. Hall - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Adria H. Jetton - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Scott W. Pedigo - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Ceejaye S. Peters - Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

11. Attorneys for Individual Plaintiffs and Intervenors

Javier N. Maldonado - Law Office of Javier Maldonado, PC

M. Briana Beltran - Southern Migrant Legal Services

Caitlin I. Berberich - Southern Migrant Legal Services

Angela Graves - Southern Migrant Legal Services

Stacie L. Jonas - Southern Migrant Legal Services

Spring A. Miller - Southern Migrant Legal Services

Douglas I. Stevick - Southern Migrant Legal Services

Sibyl C. Byrd - McDuff & Byrd

Jacob W. Howard - McDuff & Byrd

Robert B. McDuff - McDuff & Byrd

Kathryn J. Youker - Texas Rio Grande Legal Aid, Inc. - Brownsville

Jerome Wesevich - Texas Rio Grande Legal Aid, Inc. - El Paso

12. Attorneys for Amicus Curiae

Thomas P. Fritzsche - Immigrant Justice Project/Southern Poverty Law Center

Jody E. Owens II - Southern Poverty Law Center - Jackson

s/ Anne W. King___________

Attorney of record for the

Equal Employment

Opportunity Commission

CERTIFICATE OF INTERESTED PERSONS. i

TABLE OF CONTENTS. v

TABLE OF AUTHORITIES. vi

QUESTIONS PRESENTED.. 1

INTRODUCTION.. 1

FACTS AND BACKGROUND.. 3

ARGUMENT. 7

I. Federal law bars Koch Foods’ discovery of U-visa information. 7

II. The district court erred in determining that U-visas are discoverable to assess credibility. 11

III. The certified orders are appropriate for interlocutory review. 15

RELIEF SOUGHT. 20

CERTIFICATE OF COMPLIANCE...........................................................................

CERTIFICATE OF SERVICE....................................................................................

TABLE OF AUTHORITIES

Cases

Ahrenholz v. Bd. of Trs. of the Univ. of Ill.,

219 F.3d 674 (7th Cir. 2000)...................................................................16, 17

Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53 (2006)........................................................................................13

Camayo v. John Peroulis & Sons Sheep, Inc.,

Nos. 10-cv-00772-MSK-MJW & 11-cv-001132-REB-MJW,

2012 WL 5931716 (D. Colo. Nov. 27, 2012)...............................................18

Couch v. Telescope, Inc.,

611 F.3d 629 (9th Cir. 2010).........................................................................16

David v. Signal Int’l, LLC,

735 F. Supp. 2d 440 (E.D. La. 2010)......................................................14, 18

Demaj v. Sakaj,

No. 3:09cv255 (JGM), 2012 WL 476168

(D. Conn. Feb. 14, 2012).........................................................................10, 18

EEOC v. Glob. Horizons, Inc.,

No. 11-00257, 2012 U.S. Dist. LEXIS 182021

(D. Haw. Dec. 21, 2012).........................................................................14, 18

EEOC v. Glob. Horizons, Inc.,

No. CV-11-3045-EFS, 2013 WL 3940674

(E.D. Wash. July 31, 2013)...........................................................................18

EEOC v. Glob. Horizons, Inc.,

No. CV-11-3045-EFS, 2013 U.S. Dist. LEXIS 149713

(E.D. Wash. Oct. 3, 2013).............................................................................18

Galaviz-Zamora v. Brady Farms, Inc.,

230 F.R.D. 499 (W.D. Mich. 2005)..............................................................14

Gen. Tel. Co. of the Nw., Inc. v. EEOC,

446 U.S. 318, 326 (1980)................................................................................9

In re Lodholtz,

769 F.3d 531, 532 (7th Cir. 2014).................................................................19

In re Miedzianowski,

735 F.3d 383 (6th Cir. 2013).........................................................................17

In re Reyes,

814 F.2d 168 (5th Cir. 1987).....................................................................4, 12

Malbrough v. Crown Equip. Corp.,

392 F.3d 135 (5th Cir. 2004).........................................................................15

Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100 (2009)......................................................................................19

McFarlin v. Conseco Servs., LLC,

381 F.3d 1251 (11th Cir. 2004).....................................................................16

Perez v. Seafood Peddler of San Rafael, Inc.,

No. 12-cv-00116-WHO (N.D. Cal. Sept. 10, 2013)......................................17

Rivera v. NIBCO, Inc.,

364 F.3d 1057 (9th Cir. 2004).......................................................................13

Sandoval v. Am. Bldg. Maint. Indus., Inc.,

267 F.R.D. 257 (D. Minn. 2007)...................................................................14

Sure-Tan, Inc. v. NLRB,

467 U.S. 883 (1984)......................................................................................13

Yamaha Motor Corp., U.S.A. v. Calhoun,

516 U.S. 199 (1996)..................................................................................7, 15

Statutes

8 U.S.C. § 1101(a)(15)(U)(i)........................................................................2-3, 7, 14

8 U.S.C. § 1101(a)(15)(U)(iii)...............................................................................2, 7

8 U.S.C. § 1367................................................................................................passim

8 U.S.C. § 1367(a)(2)..........................................................................................8, 17

8 U.S.C. § 1367(b)(4)..............................................................................................11

28 U.S.C. § 1292(b)..........................................................................................passim

42 U.S.C. § 1981.......................................................................................................3

42 U.S.C. §§ 2000e et seq.........................................................................................1

Pub. L. No. 106-386, 114 Stat. 1464, § 1513 (2000)................................................8

Pub. L. No. 109-162, 119 Stat. 2960, § 817 (2006)..................................................8

Pub. L. No. 109-271, 120 Stat. 750, § 6(h) (2000)....................................................8

Regulations

8 C.F.R. § 214.14..............................................................................................passim

8 C.F.R. § 214.14(a)(2)..........................................................................................3, 9

8 C.F.R. § 214.14(a)(9)..............................................................................................7

8 C.F.R. § 214.14(b)..................................................................................................7

8 C.F.R. § 214.14(c)................................................................................................15

8 C.F.R. § 214.14(d)................................................................................................15

8 C.F.R. § 214.14(e)(1)..............................................................................................9

8 C.F.R. § 214.14(e)(2)..............................................................................................9

Legislative Material

H.R. Rep. No. 109-233 (2005)..................................................................................8

151 Cong. Rec. E2605, 2005 WL 3453763 (Dec. 17, 2005)

(statement of Rep. Conyers)............................................................................8

Rules

Fed. R. App. P. 5.......................................................................................................1

Miscellaneous

I-918, Petition for U Nonimmigrant Status,

http://www.uscis.gov/i-918............................................................................ 5

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) petitions this Court, pursuant to 28 U.S.C. § 1292(b) and Fed. R. App. P. 5, for permission to appeal from the district court’s September 22, 2014, and October 29, 2014, orders (“Orders”), Nos. 10-cv-135 Docket No. (“R.”) 483 & 490, which the district court certified for interlocutory appeal on June 30, 2015. R. 513.[1] The EEOC timely filed this petition within ten days after entry of the district court’s certification order. 28 U.S.C. § 1292(b).

QUESTIONS PRESENTED

1) Whether federal law (specifically 8 U.S.C. § 1367) protects Individual Plaintiffs and other Aggrieved Individuals from disclosing U-visa application information; and

2) Whether efforts to obtain U-visas and other immigration protections are discoverable to test credibility.

INTRODUCTION

This case presents issues of critical importance to the effective enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). Petitioner the EEOC sued Koch Foods of Mississippi, LLC (“Koch Foods”) on behalf of classes of Hispanic and female employees (“Aggrieved Individuals”) who worked at Koch Foods’ poultry processing plant in Morton, Mississippi, alleging a hostile work environment based on sex, race, and national origin; a pattern or practice of discrimination based on sex, race, and national origin; and retaliation. The Commission alleged, among other things, that Koch Foods knew or should have known of egregious harassment by supervisors and other personnel, including sexual assaults of female employees; offers of money or employment benefits to female employees in exchange for sex; assaults of Hispanic employees (including throwing chicken parts and other objects at them); demands that Hispanic employees pay money for bathroom access, medical leave, promotions, and other employment benefits; and racially offensive and abusive threats. R. 384.

The Commission seeks to appeal from the district court’s September 22 and October 29 orders, R. 483 & 490 (Exs. C & B), which permit extensive discovery of immigration information, specifically U-visa applications.[2] U-visas are immigration relief available to certain crime victims and their families. Qualifying crimes include offenses that many Aggrieved Individuals suffered as Koch Foods employees, such as sexual assault, abusive sexual contact, and extortion. 8 U.S.C. § 1101(a)(15)(U)(iii). Law enforcement agencies, including the EEOC, may certify U-visa applications for victims of qualifying criminal activity who have information about the crime and who may be helpful in an investigation. See 8 U.S.C. § 1101(a)(15)(U)(i); 8 C.F.R. § 214.14(a)(2). The U-visa program is exceptionally important to the EEOC and other law enforcement agencies that depend on victims to come forward and assist with investigations.

The Orders present two important issues: whether the district court erred in allowing discovery of U-visa applications 1) because federal law precludes disclosure of U-visa information and 2) because allowing employers discovery of workers’ U-visa applications will deter workers from asserting their civil rights.

FACTS AND BACKGROUND

On June 29, 2011, the Commission filed a Title VII suit, No. 11-cv-391, alleging that Koch Foods subjected over 100 Hispanic and female Aggrieved Individuals to harassment and discrimination based on sex, race or national origin, and/or retaliation. R. 384 ¶87. Separately, several individual employees (“Individual Plaintiffs”) filed suit, No. 10-cv-135, against Koch Foods under 42 U.S.C. § 1981 and state law. On December 5, 2011, the district court consolidated the two actions under No. 10-cv-135. R. 42. The Individual Plaintiffs are among the Aggrieved Individuals in the EEOC’s Title VII action (and some intervened in the EEOC’s action, R. 43, 83), but the vast majority of Aggrieved Individuals are not parties to the Individual Plaintiffs’ action. See R. 384 ¶87.

On November 30, 2012, the magistrate judge granted a protective order denying Koch Foods discovery of “immigration status or any information regarding immigration proceedings.” R. 154 at 4. Relying on In re Reyes, 814 F.2d 168 (5th Cir. 1987), the magistrate judge held that “[a]ny relevance of immigration status is clearly outweighed by the [in terrorem] effect disclosure of this information would have in discouraging the individual plaintiffs and [Aggrieved Individuals] from asserting their rights in this lawsuit.” R. 154 at 2, 4. The district court affirmed the protective order. R. 302.

On July 26, 2013, Koch Foods moved to reconsider the protective order and to compel discovery relating to any efforts by Aggrieved Individuals and Individual Plaintiffs to obtain U-visas and other immigration relief (“U-visa discovery”). R. 327. For the first time in this litigation, Koch Foods speculated that Aggrieved Individuals and Individual Plaintiffs sought U-visas based on criminal activity alleged in this lawsuit, and that they fabricated the allegations to obtain visas. R. 328 at 1.Therefore, Koch Foods demanded U-visa discovery to assess their credibility. Id. EEOC and the Individual Plaintiffs countered that federal law, particularly 8 U.S.C. § 1367’s confidentiality provisions, precludes civil discovery of U-visa applications, and that permitting U-visa discovery would create an in terrorem effect, chilling workers from asserting civil rights claims. R. 362 at 6-9.

On January 24, 2014, the magistrate judge granted Koch Foods’ motion in part, permitting U-visa discovery but again declining to allow general discovery of immigration status. R. 435 at 3-4. On September 22, 2014, after conducting in camera review, the district court adopted in part and modified in part the magistrate judge’s order. R. 483 (Ex. C). The district court barred U-visa discovery from the EEOC because the U-visa confidentiality provisions, 8 U.S.C. § 1367 and 8 C.F.R. § 214.14, prohibit the EEOC from disclosing U-visa applications. R. 483 (Ex. C) at 6-7. But, it held that Individual Plaintiffs must produce U-visa discovery “as to efforts to obtain immigration benefits that arose out of the allegations in this case.” Id. at 11. The district court concluded that federal law “does not prohibit discovery directly from an applicant who is a party,” and that Koch Foods’ claimed need for U-visas to assess credibility outweighed any in terrorem effect. Id. at 6, 10. The district court allowed partial redaction of U-visa application forms (including a section requesting the applicant’s current immigration status), but ordered disclosure of sections revealing, among other things, country of citizenship and place and date of last entry into the United States, and details about family members for whom the applicant sought a U-visa. Id.at 13; see also I-918, Petition for U Nonimmigrant Status, http://www.uscis.gov/i-918 (last visited July 8, 2015).

On October 27, 2014, EEOC and the Individual Plaintiffs sought clarification of the September 22 order, asking the district court whether it would also permit U-visa discovery directed at Aggrieved Individuals who are not Individual Plaintiffs. R. 486. On October 29, 2014, the district court clarified that Koch Foods could seek U-visa discovery of the same scope from Aggrieved Individuals, through means other than discovery propounded on the EEOC (such as subpoenas and depositions). R. 490 (Ex. B) at 4.

Because numerous Aggrieved Individuals have no immigration protections, and many still work for Koch Foods, the EEOC and Individual Plaintiffs sought a protective order strictly confining use of U-visa information to this lawsuit alone, and limiting access to attorneys’ eyes only. R. 485 at 3. On December 8, 2014, the magistrate judge entered a protective order that did not incorporate all of the strict protections the Commission believed necessary, and that allowed Koch Foods itself (not just its attorneys) access to U-visa information. R. 498.

On January 6, 2015, the Commission filed a motion to certify the district court’s September 22 and October 29 orders R. 483 & 490 (Exs. C & B) for interlocutory appeal under 28 U.S.C. § 1292(b). R.500. [3] The Commission’s motion presented two controlling questions of law: 1) whether efforts to obtain U-visas and other immigration protections are discoverable to test credibility; and 2) whether federal law (specifically 8 U.S.C. § 1367) protects Individual Plaintiffs and other Aggrieved Individuals from disclosing U-visa application information. On June 30, 2015, the district court certified the Orders for interlocutory appeal, agreeing with the EEOC that the second question met the necessary conditions for interlocutory appeal under 28 U.S.C. § 1292(b). R. 513 (Ex. A).

ARGUMENT

The Commission asks this Court to review both questions presented in the Orders allowing U-visa discovery. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 204 (1996) (noting that an appellate court may exercise jurisdiction over any question included in a certified order). First, federal law creates a privilege that precludes EEOC’s disclosure of U-visa information and that extends to Aggrieved Individuals. Second, the district court erred in allowing U-visa discovery to assess credibility, given the in terrorem effect accompanying disclosure of immigration information. Finally, this Court should exercise review because the district court properly certified the Orders.

I. Federal law bars Koch Foods’ discovery of U-visa information.

U-visas permit undocumented crime victims to obtain legal status. 8 U.S.C. §§ 1101(a)(15)(U)(i), (iii); 8 C.F.R. §§ 214.14(a)(9), (b). Congress established the U-visa through the Violence Against Women Act of 2000, as part of the Victims of Trafficking and Violence Protection Act of 2000. Pub. L. No. 106-386, 114 Stat. 1464, § 1513. Recognizing that immigrants without legal status were reluctant to report crimes or participate in investigations due to fears of deportation, Congress created the U-visa to “strengthen the ability of law enforcement agencies to detect, investigate, and prosecute” crimes “while offering protection to victims of such offenses.” Id. § 1513(a)(2) (codified at 8 U.S.C. § 1101 note).

Congress further realized that the goals of the U-visa could be undermined if applications were not confidential. Therefore, in 2006, Congress strengthened confidentiality protections that preclude the release of U-visa applications. Pub. L. No. 109-162, 119 Stat. 2960, § 817 (2006); Pub. L. No. 109-271, 120 Stat. 750, § 6(h) (2000). The U-visa confidentiality protections “are designed to ensure that abusers and criminals cannot use the immigration system against their victims.” H.R. Rep. No. 109-233, at 120 (2005); 151 Cong. Rec. E2605, 2005 WL 3453763, at *E2607 (Dec. 17, 2005) (statement of Rep. Conyers).

As the district court correctly determined, these confidentiality protections operate as a privilege barring U-visa discovery from EEOC. 8 U.S.C. § 1367(a)(2) prohibits the Departments of Justice, Homeland Security, and State from “permitting use by or disclosure to anyone … of any information which relates to an alien who is the beneficiary of an application for [a U-visa.]”

These prohibitions apply equally to the EEOC by virtue of regulations. 8 C.F.R. § 214.14(e)(1) echoes Section 1367, specifying that “[t]he use or disclosure … of any information relating to the beneficiary of a pending or approved petition for U nonimmigrant status is prohibited.” And, 8 C.F.R. § 214.14(e)(2) specifically provides that “[a]gencies receiving information under this section … are bound by the confidentiality provisions and other restrictions set out in 8 U.S.C. [] 1367.” Since the EEOC is authorized by 8 C.F.R. § 214.14(a)(2) to certify U-visa applications, it is bound by the confidentiality requirements of Section 1367.

Moreover, the U-visa confidentiality protections also preclude U-visa discovery from Aggrieved Individuals. First, because EEOC is suing on behalf of Aggrieved Individuals, Section 1367’s privilege barring EEOC’s disclosure also extends to them. The Commission’s suit differs from a private action because the EEOC is the plaintiff, suing in the public interest. See Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 326 (1980) (“[T]he EEOC acts ... for the benefit of specific individuals [but] also to vindicate the public interest in preventing employment discrimination.”). The vast majority of Aggrieved Individuals are not Individual Plaintiffs and do not have legal representation. Given the posture of this enforcement action, allowing discovery from Aggrieved Individuals would circumvent EEOC’s U-visa confidentiality privilege, impeding EEOC’s enforcement efforts for the benefit of vulnerable undocumented workers.

Second, allowing U-visa discovery from Aggrieved Individuals would conflict with Congress’ purpose in establishing U-visas and the confidentiality protections. Congress created U-visas to encourage immigrants without status to come forward and provide the government with information about certain crimes. And, Congress enacted the confidentiality provisions to protect U-visa applicants from the perpetrators of those crimes, given the likelihood that perpetrators would use sensitive immigration information to harm their victims. See Demaj v. Sakaj, No. 3:09cv255(JGM), 2012 WL 476168, at *5 (D. Conn. Feb. 14, 2012) (“[T]he purpose of [8 U.S.C. § 1367] is to protect the confidentiality of [] applications by preventing disclosure of [U-visa] documents to alleged criminals”).

Allowing civil discovery of U-visa applications from applicants themselves would run afoul of these purposes. See id. at *5-6 (denying motion to compel U-visa documents from visa applicant; explaining that disclosure of U-visa documents to assess applicant’s credibility “runs contrary to the intent of the protections afforded by 8 U.S.C. § 1367,” and reasoning that disclosure would “interfere with [the applicant’s] immigration case”). Here, the EEOC alleges that Koch Foods personnel committed acts of attempted sexual assault, sexual abuse, and extortion against numerous Aggrieved Individuals, and that Koch Foods tolerated this conduct. Even if U-visa information were disclosed only to Koch Foods, Aggrieved Individuals—especially those who remain employed at the company—may reasonably fear that Koch Foods would use the information to terminate their employment or otherwise retaliate.

Also, the statute itself contemplates that the confidentiality provision applies to individual U-visa applicants because it provides that beneficiaries may waive the confidentiality requirements under certain conditions. See 8 U.S.C. § 1367(b)(4). By giving applicants the ability to waive confidentiality, Congress necessarily contemplated that applicants could exercise the confidentiality privilege.

Alternatively, even if Section 1367’s privilege does not strictly preclude discovery from applicants, federal law, at a minimum, expresses a robust policy against permitting U-visa discovery. The district court failed to weigh that policy against Koch Foods’ asserted need for U-visa discovery, and that was error.

II. The district court erred in determining that U-visas are discoverable to assess credibility.

This Court should also review the district court’s determination that U-visas are discoverable to assess credibility. This was error because U-visa applications are not relevant, because disclosure chills workers from asserting their rights, and because Koch Foods’ speculation about fabrication does not justify disclosure.

The U-visa discovery Koch Foods seeks would result in disclosure of immigration status and other sensitive information about Aggrieved Individuals and their family members. The mere fact that someone has applied for a U-visa reveals that the applicant does not have permanent status, and the portions of the applications to be disclosed reveal country of citizenship, place and date of last entry into the United States, and family members who also seek U-visas. The sought-after U-visa discovery is irrelevant as to whether Koch Foods discriminated in violation of Title VII or to any potential defenses to a Title VII claims. See Reyes, 814 F.2d at 170 (denying discovery of immigration status as irrelevant).

Moreover, courts have long recognized that permitting civil discovery of immigration status in employment suits creates an in terrorem effect, chilling workers from asserting their rights, and “unacceptably burden[ing] the public interest.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1065 (9th Cir. 2004). As this Court has emphasized, such discovery “could inhibit [workers] in pursuing their rights” by triggering “collateral wholly unrelated consequences” and causing “embarrassment and inquiry into their private lives.” Reyes, 814 F.2d at 170.

Undocumented employees face the risk that their employer will report them to authorities and that “they will be subjected to deportation proceedings or criminal proceedings.” Rivera, 364 F.3d at 1064. And, documented workers “may fear” consequences if their status changes in the future, or that disclosure “would reveal [] immigration problems of [] family and friends,” and “may feel intimidated [at] … having their immigration history examined in a public forum.” Id. at 1065. Even if immigration status were released only to employers, workers may reasonably fear retaliatory misuse of that information—including termination for those still working for the employer. See, e.g., Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 886-87 (1984) (employer reported undocumented workers to authorities after they voted for union representation). This chilling effect also undermines the EEOC’s mission because EEOC enforcement depends on “the cooperation of employees who are willing to file complaints and act as witnesses.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).

Here, the district court erred in holding that Koch Foods’ justification for U-visa discovery—to assess Aggrieved Individuals’ credibility—could outweigh the in terrorem effect. Even if U-visa discovery were marginally relevant, the prejudicial effect of its disclosure far outweighs any probative value it might have. Therefore, courts have denied discovery of U- and T-visas where a defendant asserted that applications were needed to assess credibility, citing the chilling effect of such discovery. See, e.g., EEOC v. Glob. Horizons, Inc., No. 11-00257, 2012 U.S. Dist. LEXIS 182021, at *22 (D. Haw. Dec. 21, 2012) (explaining that “[t]he potential chilling effect” of immigration-related discovery, including U- and T-visas, “significantly outweighs the benefit of the information that the Defendants may obtain related to credibility”); David v. Signal, Int’l, LLC, 735 F. Supp. 2d 440, 443, 448 (E.D. La. 2010) (denying discovery of T- and U-visa applications although defendant claimed they were relevant to credibility; accepting plaintiffs’ proposed compromise to produce statements attached to visa applications). [4]

Moreover, Koch Foods failed to offer any justification for U-visa discovery beyond its speculation that Aggrieved Individuals fabricated allegations in order to obtain U-visas. R. 328 at 1. Koch Foods implies—incorrectly— that U-visas are easily obtained. In fact, at least two government agencies must assess the applicant’s credibility and determine that he or she has, in fact, been the victim of qualifying criminal activity. A law enforcement agency, such as EEOC, completes an initial certification, and U.S. Citizenship and Immigration Services conducts de novo review before approving an application. See 8 U.S.C. § 1101(a)(15)(U)(i); 8 C.F.R. § 214.14(c). Furthermore, there is an annual cap of 10,000 U-visas per year; eligible applicants remain on a waiting list until a U-visa is available. 8 C.F.R. § 214.14(d). Given the hurdles for applicants, and the credibility assessments built into the application process, Koch Foods’ assertion that U-visas are needed to assess credibility is not sufficient to overcome in terrorem concerns.

III. The certified orders are appropriate for interlocutory review.

This Court has discretion to permit an appeal from a nonfinal order of the district court when that court certifies the order for interlocutory appeal. 28 U.S.C. § 1292(b). District court certification is appropriate when an order “involves a controlling question of law as to which there is substantial ground for difference of opinion and [] an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Id. Here, the district court properly certified the Orders, and this Court should exercise jurisdiction to permit interlocutory appeal and to review issues raised in the Orders. Yamaha Motor Corp., 516 U.S. at 204-05; Malbrough v. Crown Equip. Corp., 392 F.3d 135, 136 (5th Cir. 2004).

First, the certified Orders involve “controlling question[s] of law.” As the district court correctly determined, whether federal law precludes U-visa discovery from Aggrieved Individuals is a question of law requiring “interpret[ation] [of] a federal statute and its implementing regulations.” R. 513 (Ex. A) at 4. See McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1258 (11th Cir. 2004) (citing Ahrenholz v. Bd. of Trs. of the Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000) (interpretation of statutes and regulations is a question of law under Section 1292(b)). Whether U-visa applications are discoverable to assess credibility is also a question of law. Because the in terrorem effect associated with discovery of immigration information is well-established, this Court may apply that concept in the present context “quickly and cleanly without having to study the record.” McFarlin, 381 F.3d at 1258 (quoting Ahrenholz, 219 F.3d at 677).

Both questions are “controlling.” The district court stressed that the outcome of the Section 1367 question will “fundamentally affect[]” the litigation because “an incorrect ruling that allowed discovery and admissibility of [U-visa] evidence would likely require reversal due to the obvious potential for prejudice.” R. 513 (Ex. A) at 5. The same is true for the other question. Discoverability of U-visas is an important issue given the strong anti-disclosure policy embodied in Section 1367 and cases recognizing the in terrorem effect. This Court’s decision would significantly impact private civil rights litigation and government enforcement.

Also, resolving both questions “is quite likely to affect the further course of litigation.” Couch v. Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010) (internal citation omitted). The Orders considerably expand the scope of discovery. This Court’s decision could narrow discovery, avoiding burdensome U-visa inquiries (including redepositions of numerous Aggrieved Individuals), and preventing disclosure of sensitive immigration information that cannot be undisclosed. Or, affirmance could provide greater certainty that such discovery should proceed.

Second, there is “substantial ground for difference of opinion” as to both controlling questions. This Court has not yet addressed the questions presented, and, as the district court explained, novel issues of first impression may demonstrate “substantial ground for difference of opinion.” R. 513 (Ex. A) at 5; see also In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013) (explaining that district courts have found “substantial ground for difference of opinion” when “the question is difficult, novel, and either a question on which there is little precedent or one whose correct resolution is not substantially guided by previous decisions” and when “the question is difficult and of first impression”).

Also, courts have come to varying conclusions on both questions, illustrating that they are “contestable.” Ahrenholz, 219 F.3d at 675. Only a few courts have applied 8 U.S.C. § 1367(a)(2) in the civil discovery context, and their treatment varies, demonstrating differing views of the statute’s effect. Compare Perez v. Seafood Peddler of San Rafael, Inc., No. 12-cv-00116-WHO, at *6-8 (N.D. Cal. Sept. 10, 2013) (unpublished) (interpreting Section 1367 to preclude questions to Department of Labor witnesses about employees’ U-visa status) with EEOC v. Glob. Horizons, Inc., No. CV-11-3045-EFS, 2013 U.S. Dist. LEXIS 14971, at *7 (E.D. Wash. Oct. 3, 2013) (interpreting Section 1367 to permit T-visa discovery from both claimants and the EEOC) and Demaj, 2012 WL 476168, at *5-6 (D. Conn. Feb. 14, 2012) (invoking Section 1367 in denying U-visa discovery). [5]

Courts also differ on discoverability of U-visas to assess credibility. Some courts have declined to allow discovery of U-visa applications, citing in terrorem concerns. See Glob. Horizons, 2012 U.S. Dist. LEXIS 182021, at *22; David, 735 F. Supp. 2d at 443, 448. However, other courts have accepted employers’ arguments that U- or T-visas are discoverable to assess credibility, despite the risk of chilling workers. See EEOC v. Glob. Horizons, Inc., No. CV-11-3045-EFS, 2013 WL 3940674, at *5-6 (E.D. Wash. July 31, 2013) (finding that T-visa applications were likely to contain relevant information, and accepting employer’s credibility justification); Camayo v. John Peroulis & Sons Sheep, Inc., Nos. 10-cv-00772-MSK-MJW & 11-cv-001132-REB-MJW, 2012 WL 5931716, at *2 (D. Colo. Nov. 27, 2012) (allowing U- and T-visa discovery to assess “motivation and fabrication” of testimony, over employees’ in terrorem objection).

Finally, “immediate appeal from the [O]rder[s] may materially advance the ultimate termination of the litigation.” As the district court explained, immediate appeal of the Section 1367 question would materially advance the ultimate termination of the litigation for the same reason that the question is controlling: because an incorrect ruling would likely require reversal. R. 513 (Ex. A) at 6. Again, the same is true for the other question. As explained, supra at 16-17, reversal by this Court would significantly narrow the scope and burden of discovery, “expedit[ing] the resolution of the entire litigation.” In re Lodholtz, 769 F.3d 531, 532 (7th Cir. 2014). Or, affirmance would establish greater certainty and potentially prevent future discovery disputes.

Also, as the district court emphasized, R. 513 (Ex. A) at 7, the Section 1367 question—which asks whether federal law establishes a U-visa privilege—is the very type of question that Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009) characterized as appropriate for interlocutory appeal. “[P]reconditions for §1292(b) review … are most likely to be satisfied when a privilege ruling involves a new legal question or is of special consequence, and district courts should not hesitate to certify an interlocutory appeal in such cases.” Id. at 110-111.

In summary, the certified Orders involve “controlling question[s] of law” as specified in Section 1292(b). This Court has jurisdiction to review the Orders, and the EEOC asks this court to exercise its discretion to permit the appeal.

RELIEF SOUGHT

For the reasons above, the Commission respectfully requests that this Court grant its petition for interlocutory appeal, exercise jurisdiction to review the Orders, and reverse the Orders and remand for further proceedings. The Commission asks this Court to hold that U-visa discovery is barred because federal law prohibits disclosure, and because such discovery is not available to assess credibility in light of the in terrorem effect.

Respectfully submitted,

P. DAVID LOPEZ s/ Anne W. King_____

General Counsel ANNE W. KING

Attorney

JENNIFER S. GOLDSTEIN U.S. EQUAL EMPLOYMENT

Associate General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

LORRAINE C. DAVIS 131 M St. NE, Fifth Floor

Assistant General Counsel Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

Dated: July 10, 2015

CERTIFICATE OF COMPLIANCE

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5), the type style requirements of Fed. R. App. P. 32(a)(6), and the typeface requirements of Fifth Cir. R. 32.2 because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14-point Times New Roman font in the body and 12-point Times New Roman font in the footnotes.

s/ Anne W. King___________

ANNE W. King

Attorney for the Equal Employment

Opportunity Commission

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

Dated: July 10, 2015

CERTIFICATE OF SERVICE

I hereby certify that, on July 10, 2015, I electronically submitted the foregoing for filing to the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit via Pay.gov and served the foregoing via regular mail, overnight delivery, and/or email to the attorneys of record listed below:

Scott W. Pedigo

Adam H. Gates

Adria H. Jetton

Jennifer G. Hall

Nakimuli O. Davis-Primer

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

P.O. Box 14167

4268 I-55 North

Meadowbrook Office Park (39211)

Jackson, MS 39236-4167

Russell W. Gray

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

1800 Republic Centre

633 Chestnut St.

Chattanooga, TN 37450-1800

Javier N. Maldonado

Law Office of Javier Maldonado, PC

8918 Tesoro Dr., Ste 575

San Antonio, TX 78217

Kathryn J. Youker

Texas Rio Grande Legal Aid, Inc. - Brownsville

531 E. St. Francis

Brownsville, TX 78520

Jerome Wesevich

Texas Rio Grande Legal Aid, Inc. - El Paso

1331 Texas Ave.

El Paso, TX 79901

M. Briana Beltran

Angela Graves

Caitlin I. Berberich

Stacie L. Jonas

Southern Migrant Legal Services

A Project of Texas Rio Grande Legal Aid, Inc.

311 Plus Park Blvd., Ste 135

Nashville, TN 37217

Robert B. McDuff

Sibyl C. Byrd

Jacob W. Howard

McDuff & Byrd

767 North Congress St.

Jackson, MS 39202

Jody E. Owens II

Southern Poverty Law Center - Jackson

111 East Capitol St., Ste 280

Jackson, MS 39201

Thomas P. Fritzsche

Immigrant Justice Project/Southern Poverty Law Center

233 Peachtre St. NE, Ste 2150

Atlanta, GA 30303

s/ Anne W. King_____

ANNE W. King

Attorney for the Equal Employment

Opportunity Commission

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

Dated: July 10, 2015

[1] The certification order (R. 513) and the Orders (R. 490 & 483) are attached as Exs. A, B, & C.

[2] Koch Foods also sought discovery of T-visas—immigration relief for trafficking victims—but this lawsuit does not allege trafficking, and T-visas are not at issue. See R. 483 (Ex. C) at 2 n.2. Still, the EEOC’s arguments regarding discovery of U-visas also apply to discovery of T-visas.

[3] Section 1292(b) does not specify a time limit for requesting certification in the district court.

The Commission filed its Section 1292(b) motion within a reasonable time, seeking certification shortly after the magistrate judge entered a protective order regarding U-visa discovery. R. 498.

[4] Courts have also rejected employers’ credibility justifications in barring discovery of immigration status information other than U-visa applications. See, e.g., Sandoval v. Am. Bldg. Maint. Indus., Inc., 267 F.R.D. 257, 276 (D. Minn. 2007); Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 502 (W.D. Mich. 2005).

[5] EEOC v. Glob. Horizons, Inc., No. CV-11-3045-EFS, 2013 WL 3940674 (E.D. Wash. July 31, 2013); 2013 U.S. Dist. LEXIS 149713 (E.D. Wash. Oct. 3, 2013), is a separate lawsuit from EEOC v. Glob. Horizons, Inc., No. 11-00257, 2012 U.S.Dist. LEXIS 182021 (D. Haw. Dec. 21, 2012), cited previously.