UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

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VICTOR ZAVALA, ARTURO ZAVALA,                   03 CV 5309

EUNICE GOMEZ, MAXIMILIANO MENDEZ,

CARLOS ALBERTO TELLO, ANTONIO

FLORES, HIPOLITO PALACIOS and

OCTAVIO DENISIO, on behalf of themselves               MOTION FOR LEAVE TO

and others similarly situated,                                           INTERVENE AND

                                                                                    PLEADING PURSUANT TO

                                                Plaintiffs,                      FRCP 24(c)

 

                              -against-

 

WAL-MART CORPORATION, FACILITY

SOLUTIONS INCORPORATED, FACILITY

SOLUTIONS INTERNATIONAL, MITCHELL

INDUSTRIES, LLC, RUTH AND SONS, LLC,

JWM COMMERCIAL CLEANING,

RT CLEANING, KENNETH CLANCY,

GIOVANNI ALABENA, FELIPE SOTO,

RAUL TIJERINO, and DOES 1-500,

 

                                                Defendants.

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OVERVIEW

 

            This motion arises because no party can adequately protect the interests of immigration law enforcement.  By this motion, immigration law enforcement seeks to intervene through Friends of Immigration Law Enforcement (FILE), a non-profit public interest advocacy group based in Washington, DC and with members in the district of New Jersey.  Membership in FILE is restricted to persons with a direct interest in immigration policy and law enforcement:  attorneys, state and federal legislators, immigration experts, and members of the local, state, and federal law enforcement communities.

            Plaintiffs filed a class action complaint with the Clerk of this Court on November 10, 2003 in which they asserted claims against defendants under the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. 1961, et seq.), among others.  In that complaint, plaintiffs conceded both their illegal alien status and the consensual nature of their employment by defendants. 

            Immigration law enforcement, through FILE, moves to intervene by special appearance[1] for the limited purpose of seeking dismissal of those claims based on civil remedies under 18 U.S.C. 1961, et seq. (plaintiff's civil RICO claims).  FILE moves pursuant to Rule 24(a) of the Federal Rules of Civil Procedure as a matter of right in order to assert the Constitutional rights and other legal interests of immigration law enforcement.[2]  FILE makes this motion on the grounds that it has an interest in the disposition of plaintiffs' civil RICO claims, and that the Court's action on those claims may, as a practical matter, impair and impede immigration law enforcement's future efforts to avail itself of the civil remedies and protections provided by Congress under Title 18.

            If permitted to intervene, FILE intends to present arguments showing that dismissal of plaintiffs' civil RICO claims is necessary in order to safeguard the full capacity of immigration law enforcement to execute the nation's duly legislated immigration policies.

Moreover, the instant action is, to FILE's knowledge, the first in which individuals whose employment is prohibited by the Immigration and Nationality Act (8 CFR 210.1) as modified by the Immigration Reform and Control Act of 1986 (IRCA) (PL 99-603) cite their own voluntary illegal employment as the predicate act for a civil RICO action against their own employers.  If plaintiffs are permitted to prevail on that claim, it will not only raise serious questions about who may be a plaintiff in a civil RICO action, it will place the Court in a position in which it is asked to provide a remedy on an employment relationship made illegal by IRCA.  If plaintiffs are permitted to prevail, IRCA - one of the chief law enforcement tools available for immigration violations - will be eviscerated.

            The Challenge or Defense discussed here is not exclusive and FILE may submit additional ones in its motion to dismiss.  This Challenge or Defense, however, will establish the nature of immigration law enforcement in this proceeding, thus fulfilling the function of the pleading requirement of Rule 24(c).[3]

 

FIRST CHALLENGE OR DEFENSE

            Counts One and Two of the complaint assert claims under RICO (18 U.S.C. 1961, et seq.).  Specifically, plaintiffs contend that the defendants, by employing the plaintiffs, have engaged in a pattern of racketeering activity and have also conspired to engage in racketeering activity.  On these claims, plaintiffs contend defendants are liable to them threefold their damages, which are based on the defendants' alleged systematic violation of wage, labor and other laws.

            In order for the defendants to be liable to the plaintiffs for violations of wage, labor and other laws, this Court must first find that there is a legally cognizable employment relationship between plaintiffs and defendants. 

            In Hoffman Plastic Compounds v. NLRB, 535 US 137 (2002), the Supreme Court held that an undocumented alien cannot be awarded unearned back wages because such an award violates IRCA.  IRCA applies to aliens, irrespective of the legal field in which issues affecting them arise or the forum in which such issues are heard.  The prohibitions of IRCA affect the remedies available to an alien, and IRCA specifically makes the remedy of back and future wages unavailable to an undocumented alien, irrespective of the basis of the alien's claim.

            IRCA does not permit the employment of the plaintiffs in this action, and indeed, that is part of the factual basis of the plaintiffs' RICO claims.  With no lawful avenue to earn wages, this Court must dismiss plaintiffs' RICO claims (if not the case itself) because an award on that claim not only violates explicit congressional policies, it would place this Court in a position in which it must recognize a prohibited employment relationship between the parties.  If this Court were to award a remedy on plaintiffs' RICO claims, it would award wages that no U.S. employer can lawfully pay. 

            In sum, the Court's positive action on plaintiffs' RICO claims would violate and trivialize congressional policy and usurp Constitutionally guaranteed congressional prerogatives.  The complaint's RICO claims must be dismissed because plaintiffs cannot be awarded wages that IRCA prohibits them from earning. 

 

FILE'S INTEREST IN THIS ACTION

            The Constitutional rights and other legal interests FILE seeks to protect here are fundamentally different from the interests that defendants have heretofore attempted to defend.  Immigration law enforcement, through FILE, is a real party in interest with direct standing to assert actual, not generalized, harm if the Court gives any imprimatur to an employment contract made illegal by IRCA.  Defendants, who are pursued by plaintiffs for a money judgment, do not have the same incentive to diligently defend or assert their rights against plaintiffs' civil RICO claims, and their broad potential to render meaningless an employment relationship made illegal by IRCA.  This is something that cannot be calculated in dollars.  Indeed, if the allegations made against the defendants in the present case are found to be merited, the defendants will have been shown to be particularly ill-suited, even hostile, to protecting the interests of immigration law enforcement and the provisions of IRCA.

            This motion to intervene is timely.  A person seeking leave to intervene is required to do so in a timely fashion, judged in light of all circumstances.  When interpreting this rule, courts are especially lenient if intervention is sought as of right because of the risk of serious harm and injustice to the proposed intervenor if intervention is denied.  Banco Popular de Puerto Rico v. Greenblatt, 964 F. 2d 1227, 1230 (1^st Cir. 1992); United States v. Oregon, 745 F.2d 550, 552 (9^th Cir. 1984). 

            The factors to consider when timeliness is a question include the stage of the proceeding at which intervention is sought, the prejudice or lack thereof to the existing parties, the reason for the delay, and the length of the delay.  Banco, 964 F.2d at 1231.

            In this case, FILE seeks to intervene in a very early stage of the proceedings, as plaintiff's action was commenced only in November 2003.  Findings of delay typically involve many years or many months of delay.  Reid L. v. Illinois State Board of Education, 289 F.3d 1009, 1017-20 (7^th Cir. 2002) (motion nine years after litigation began); United States v. Dallas County Comm'n, 850 F.2d 1433, 1442-43 (11^th Cir. 1988), cert. denied 490 U.S. 1030 (1989) (motion 8 years after action began).  In one case, even a delay of 26 years was found insufficient to bar intervention as untimely. Oneida Indian Nation v. New York, 201 F.R.D. 64, 68-89 (N.D.N.Y. 2001).

            Furthermore, the existing parties will not be prejudiced by any delay, if there was any, by the filing of this motion. 

 

Dated:

 

By:

            ______________________________

            Craig Nelsen, Executive Director

            Friends of Immigration Law Enforcement

            310 6^th St S.E. 2^nd Flr

            Washington, DC 20003

            202 543 2323