March 17, 2000

In the Matter of:

Georgia Legal Services Program
1100 Spring Street, Suite 200-A
Atlanta, GA  30309-2848

National Legal and Policy Center
1309 Vincent Place, Suite 1000
McLean, VA  22101

Georgia Growers Association, Inc.
2775 Ellenton-Norman Park Rd.
Norman Park, GA. 31771

Southern Valley Fruit and Vegetable, Inc.
2775 Ellenton-Norman Park Rd.
Norman Park, GA  31771

Hamilton Growers, Inc.
2775 Ellenton-Norman Park Rd.
Norman Park, GA 31771

This complaint alleges that Georgia Legal Services Program (GLSP), a program funded by federal tax funds through the Legal Services Corporation (LSC), apparently illegally provided legal assistance to five individuals who did not meet the eligibility standards for such assistance as set forth in federal appropriations law as well as LSC regulations.

This complaint further alleges that GLSPÕs actions in this case appear to have specifically violated federal appropriations law insofar as GLSP has participated in litigation in which it has failed to name each plaintiff in the complaint and it has pursued the litigation as a class action, a type of litigation which is flatly prohibited for recipients of Legal Services Corporation grants.

In a complaint filed in the U.S. District Court for the Middle District of Georgia, GLSP set forth what it purported to be the grounds for its lawsuit on behalf of five named clients Òand others similarly situated.Ó See  Exhibit A: Noe Rivera Garay, et al. v. Southern Valley Fruit and Vegetable, Inc., et al., Case No. 6:99-cv-74 (WLS)

The complaint identified the five named clients as having permanent residences in Michoacan, Mexico.  The clients were further described as participants in the H-2a temporary agricultural worker program who traveled to Georgia in April 1998, more than a year prior to the complaint filed by GLSP, to work for the defendants.

GLSP asked the court to grant judgment not only for the named clients but also for a  large unidentified number of Òothers similarly situated.Ó

The legal assistance provided to the five aliens in this case by GLSP represents an apparent violation of federal appropriations law regarding legal assistance to aliens.

The current appropriations law governing LSC, Public Law 106-113, incorporates by reference the eligibility requirements for the provision of legal assistance to aliens by LSC-funded programs which was set forth in Section 504(a)(11) of Public Law 104-134.  The relevant language is as follows:
 

Sec. 504

(a) None of the funds appropriated in this Act to the Legal Services Corporation may be used to provide financial assistance to any person or entity (which may be referred to in this section as ÒrecipientÓ)-
 . . .
(11)  that provides legal assistance for or on behalf of any alien,
unless the alien is present in the United States and is-
 . . .
(E)   an alien to whom section 305 of the Immigrant Reform and Control Act of 1986 (8 U.S.C. 1101 note) applies, but only to the extent that the legal assistance provided is the legal assistance described in such section;

This lawsuit is proceeding with none of the current plaintiffs present in the United States.

While LSCÕs board of directors set up the ÒErlenborn CommissionÓ to resolve what was purported to be an ambiguity as to when the presence of an alien was required as a precondition for legal assistance, that commission, as well as the LSC board, has no legal authority to change federal appropriations law.

Moreover, the voluminous record of that commission failed to even address meaning of the verb ÒisÓ in the statutory phrase Òis present in the United States.Ó  The commissionÕs dubious conclusion that legal services could be rendered to aliens who were no longer physically present in the United States would certainly be defensible if the statutory language in question was no Òlegal assistance for or on behalf of any alien unless the alien was in the United States.Ó  The commissionÕs conclusion clashes with the plain meaning of the law as written, failed to provide any explanation as to why the word ÒisÓ should not be given its normal meaning and accepted an interpretation wholly inconsistent with statutory language which has been passed annually by Congress since 1983.

Any argument that GLSPÕs legal assistance to the five aliens in this case is consistent with federal appropriations law is an argument that ÒisÓ means Òwas.Ó

If Congress had seen fit to allow for legal assistance to an alien who was no longer in the United States, then it would not have used solely the present tense word ÓisÓ as a necessary precondition for legal assistance.

The phrase Òis present in the United StatesÓ was meant to condition eligibility for legal assistance to aliens present in the United States when legal assistance is being rendered.  ÒCanons of statutory construction dictate that if the language of the statute is clear, we need look no further than the language in determining the statuteÕs meaning.Ó  United States v. Lewis, 67 F.3d 225, 228 (9th Cir. 1995)(citing Sullivan v. Stroop, 496 U.S. 478, 482 (1990)).

Nothing presented in the public deliberations of the Erlenborn Commission comes even close to providing a scintilla of evidence that the presence requirement contained in the appropriations law governing LSC was meant by its authors to allow legal assistance when the alien is not present in the United States.

LSCÕs own briefing paper presented to the Feb. 2, 1999 meeting of the Erlenborn Commission, Restrictions on Legal Assistance to Aliens: Legal Background, stated:
 

ÒUnder current law, LSC recipients may provide legal assistance to an alien if the alien is present  in the United States and falls within one of several designated categories.  See  Pub. L. 104-134; and 45 CFR Part 1426

Ò...nor is there any indication in relevant legislative history to indicate the term should not be given its plain meaning which is to actually be physically in the United States.Ó

 The executive summary of The Erlenborn Commission Report, at page ii, illustrates the collective failure to address the meaning of the word ÒisÓ in the legislative language restricting the use of LSC funds to any legal services program Òthat provides legal assistance for or on behalf of any alien unless the alien is present in the United States...Ó
 

ÒConstruing the term ÔpresentÕ according to its ordinary meaning, it is clear that the statute requires the alien to be physically present in the United States at some point.  This conclusion does not end the inquiry, however, because the relevant question is not whether an alien must be physically present but when  the alien must be present in order to be entitled to LSC representation.  Here, the language provides no express statement on when an alien must be present in the United States.Ó

Throughout every recent floor debate in the U.S. House of Representatives over funding for the Legal Services Corporation, proponents of increased funding have routinely argued that LSC deserved increased funding, in part, because it was taking steps to enforce the restrictions imposed by Congress which attempt to eliminate abuses which have plagued the legal services program for years.  Moreover, in every appropriations hearing for LSC since the Fiscal Year 1996 restrictions went into effect, LSC officials have represented to Congress that the appropriations restrictions were being scrupulously enforced.

Critics of legal services have made the point that LSC has been systematically failing to enforce the reforms mandated by Congress.  ItÕs hard to imagine a more compelling argument as to the failure by LSC to enforce restrictions than a decision by LSC to ignore a statutory restriction, in effect since 1983, against representing aliens not physically present in the country.

While it is hard to recall a case more replete with violations of federal appropriations laws and LSC regulations by a legal services program than this case, GLSP has undertaken additional activities which also appear to violate the very same appropriations law and LSC regulation.

Among the allegations put forth by GLSP attorneys on behalf of their ineligible and, in some cases unidentified, clients, are claims that the plaintiffs were not reimbursed for the costs of their Mexican passports and related travel costs.

The claim for reimbursement for passports is specious for several reasons.

First, as pointed out by DefendantsÕ counsel, the passports of Plaintiffs Noe Rivera Garay and Efrain Rivera Garay were dated in early 1997 - a year before the certification by the Department of Labor of the need for foreign workers in the Georgia vegetable harvest.  Plaintiff Salvador GonzalezÕs Mexican passport was dated in early 1998, again prior to any Department of Labor certification.

Second, GLSP lawyers failed to cite any legal authority whatsoever that the Georgia farmers were responsible for paying for passports already obtained by GLSPÕs clients prior to any involvement in the Georgia harvest.  As the DefendantsÕ counsel pointed out in their motion in opposition to the class action:
 

Plaintiffs do not submit any legal authority whatsoever in support of the point that a passport issued in a foreign country is an expense that must be reimbursed by any U.S. employer under the FLSA.  Plaintiffs cite to no statute, regulation or case supporting their claim.  The detailed regulations (20 C.F.R. § 655.102(b)) on wages and benefits for H-2A workers provide for no such reimbursement. Indeed, the FLSA does not even apply in Mexico.

The icing on the cake in this wildly exaggerated ÒcomplaintÓ is that the legal services lawyers involved canÕt even come up with a cite as to what law or regulation is being violated by the ÒfailureÓ of farmers to reimburse for passports.  Yet they want to initiate a 300-plus person class action on behalf of individuals whose names they donÕt know to make sure the passport reimbursements are made for passports purchased in a foreign country long before any H-2A contract.

It is beyond question that federal appropriations law and LSC regulations both limit representation of aliens involved in the H-2A program to Òmatters which arise under the provisions of the workerÕs specific employment contract.Ó  45 CFR
§ 1626.11(b)   In this case, GLSP lawyers are pursuing claims that their clients were not reimbursed for passports purchased a year prior to their involvement in the H-2A contract.   In pursuing such claims, GLSP is violating the LSC regulation just cited as well as federal appropriations law.

Even if the Erlenborn Commission had the authority to change federal law, which it obviously doesnÕt, and even if its interpretation of the word ÒisÓ to mean ÒwasÓ wasnÕt absurd, which it is, GLSP would still be violating the law and the regulation on alien representation because it is filing claims on matters that pre-date any contract. involve actions which took place in a foreign country and are clearly not within the scope of matters allowed to be litigated.

It gets worse.

Recognizing the costs associated with deposing parties to a lawsuit who are not present in the United States, the GLSP attorney has offered to use GLSP funds to subsidize travel to Mexico for depositions.

In a January 21, 2000 letter from the Farmworker Division of Georgia Legal Services Program to an attorney for the Defendants, Legal Services lawyer Nan Schivone wrote:
 

We propose that, given the significant hardship to the plaintiffs in appearing at the noticed deposition, the site of the deposition be  changed to the plaintiffsÕ place of residence in Epitacio Huerta, Michoacan, Mexico.  I believe the plaintiffs are available for deposition at practically anytime after the first week of February.

We recognize that the deposing attorney is usually responsible for all costs associated with the taking of the deposition, and that traveling to Mexico is not a usual expense.  We have investigated   airfare from Tampa to Mexico City and land travel from Mexico City to Epitacio Huerta, Michoacan.  By way of compromise, we would be willing to pay the reasonable cost of travel (airfare and land travel) for the DefendantsÕ deposing attorney, minus what would be  spent to travel to the proposed site in Georgia.

The preliminary statement of the complaint states:
 

In counts one and two the Plaintiffs seek declaratory relief and damages on behalf of themselves and all others similarly situated for DefendantsÕ violations of their rights under the Fair Labor Standards Act (hereinafter ÒFLSAÓ), 29 U.S.C. §§ 201-219.

From the motion filed by GLSP, it appears that the legal services program wishes to represent as many as 335 aliens in a class action in blatant violation of the federal restriction against class actions first set forth in Public Law 104-134.

The restriction against class actions is neither ambiguous nor does it state any exceptions:
 

Sec. 504

None of the funds appropriated in this Act to the Legal Services Corporation may be used to provide financial assistance to any person or entity (which may be referred to in this section as ÒrecipientÓ)-
 . . .
(7)   that initiates or participates in a class action suit;

VI.     CONGRESSIONAL RESTRICTIONS ON THIS LITIGATION

As reflected in the proposed notice, Plaintiffs are represented by   Legal Services attorneys.  Congress prohibits Legal Services   Corporation (LSC), and those organizations taking their funding   from LSC, from undertaking a class action, directly or through   others.  42 U.S.C. § 2996e.  Public Law 104-134 made this a strict   prohibition and LSC recognized the Òclear prohibitionÓ on this   activity in the preamble to 45 C.F.R. Part 1617.  45 C.F.R. 1617.3   now prohibits Legal Services from initiating or participating in a   class action with no exceptions.  While Òclass actionÓ is defined by LSC with reference to Rule 23, it also extends the class action   pursuant to Òrule of civil procedure applicable in the court in which   the action is filed.Ó  While this class action is not brought pursuant   to Rule 23, it remains a federal court class action.  See, e.g.,Grayson, supra (repeatedly referring to such cases as class    actions).  Thus, as held in Brooks v. Bellsouth Tel. Co., supra, while these Òclass actions...do not proceed under Fed. R. Civ. P    23...section 16(b) of the Fair Labor Standards Act...provides    procedures for representative or class actions.Ó  The bottom line is   that LSC attorneys seek to represent 335 persons in a class action, despite a Congressional prohibition.

Given the enormous costs associated with class actions, any unnecessary delay by LSC in stopping GLSPÕs pursuit of a class action would escalate the questioned costs associated with GLSPÕs actions and unfairly burden the defendants by subjecting them to a practice clearly banned by federal appropriations law.

The original complaint filed by GLSP in this case identifies just five clients yet seeks to assert claims on behalf of as many as 335 workers.

As with seeking to provide legal assistance to aliens not present in the United States and initiating a class action, GLSP is in apparent violation of federal appropriations law yet again by filing a complaint without specifically identifying each plaintiff, by name, in the complaint.

Public Law 104-134 sets forth the restriction as follows:
 

Sec. 504

None of the funds appropriated in this Act to the Legal Services Corporation may be used to provide financial assistance to any   person or entity (which may be referred to in this section as a ÒrecipientÓ)-
 . . .
 (8)   that files a complaint or otherwise initiates or participates in litigation against a defendant, or engages in a precomplaint settlement negotiation with a prospective defendant, unless-

(A)   each plaintiff has been specifically identified, by name,  in any complaint filed for purposes of such litigation or prior to the precomplaint negotiation; and

(B)   a statement or statements of facts written in English and, if   necessary, in a language that the plaintiffs understand, that enumerate the particular facts known to the plaintiffs on which the   complaint is based, have been signed by the plaintiffs, are kept on   file by the recipient, and are made available to any Federal department or agency that is auditing or monitoring the activities of  the Corporation or of the recipient, and to any auditor or monitor receiving Federal funds to conduct such auditing or monitoring, including any auditor or monitor of the Corporation: . . .

The actions of GLSP in this case further underscore the controversial modus operandi which has all too often accompanied legal services lawsuits against farmers. As has been amply documented in Dr. Rael Jean IsaacÕs Harvest of Injustice: Legal Services vs. the Farmer  as well as in hearings ably led by Representatives George Gekas and Roscoe Bartlett in recent years, the favored legal services tactic is to force farmers to settle flimsy and even non-existent claims by simply running up the legal bill to fight the lawsuit.

In this case, farmers are facing an extraordinarily expensive potential class action involving as many as 335 plaintiffs residing in Mexico.  Some of the allegations are so patently bogus, as with the claim that farmers are somehow legally responsible to reimburse workers for the costs of passports purchased by workers long before the contract even existed, that  the legal services lawyers donÕt even bother to cite any legal authority for the allegation.  In the world of legal services litigation, it doesnÕt matter that the allegations are nonsense.  What matters is that the case be so expensive for the farmers to fight that theyÕll settle just to avoid the huge litigation costs.

And nothing jacks up legal costs like a class action involving hundreds of clients in a foreign country.

More than anything, this litigation by GLSP provides a compelling justification for the Congressional restrictions against class actions, unidentified plaintiffs and the provision of legal assistance to aliens not present in the United States.  The fact that Congress has already outlawed the abuses being practiced underscores the point made by LSCÕs critics that the program is beyond reform.

Failure of LSC to swiftly intercede in this case to stop these violations of federal appropriations law will make the case that LSC is not prepared to do its legal duty under the LSC Act to enforce the law because it prefers to be an enabler for programs seeking to evade federal restrictions.  And LSCÕs critics will not have to expend much energy making the case that LSC is ignoring the wishes of Congress.  LSC will have done the work for them.
 

LSC Complaints Page

Legal Services Accountability Project Page

Home Page