September  21, 1999

In the Matter of:
 

 Texas Rural Legal Aid, Inc.
 259 South Texas Boulevard
 Weslaco, TX  78596

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

 This complaint alleges that Texas Rural Legal Aid, Inc. (TRLA), a program funded by Legal Services Corporation (LSC), apparently illegally provided legal assistance to three individuals who did not meet the eligibility standards for such assistance as set forth in LSC regulations.

 Additionally, the legal assistance provided appears to be in direct violation of the eligibility requirements of Public Law 105-277, the current appropriations law for the Legal Services Corporation.  TRLA was fined by LSC in 1997 for violating federal appropriations law when it illegally sought attorneysÕ fees in a case seeking to challenge election results by disenfranchising active duty military and their families who had voted by absentee ballot.

 Moreover, during the March 3, 1999 hearing of the Commerce, Justice, State and Judiciary Subcommittee of the House Appropriations Committee on LSC Fiscal Year  2000 funding, LSC President John McKay cited the fact that LSC had Òsubstantially fined and admonishedÓ TRLA and had imposed requirements for their continued receipt of LSC funds, Òincluding being subject to spot audits.Ó  The LSC President went on to state Òthat no violations of LSC regulations would be tolerated by the Corporation.Ó

 In a letter dated July 6, 1999, Mr. Javier Riojas, an attorney with TRLA, wrote to Mr. James D. Wurth, Mr. Robert L. Scheer and to the Murray Employment Agency, Inc. on behalf of ten clients, seven of whom were U.S. workers and three were identified as H-2A workers, meaning they were not U.S. citizens.  [see: Exhibit A]  With respect to the H-2A workers, Mr. Riojas stated that the three had been hired in 1996 at the behest of Mr. Wurth and Mr. Scheer pursuant to a Job Order submitted by Murray Employment Agency for employment harvesting tobacco and vegetables from April 14, 1996 until October 1, 1996.  The three workers were Fausto Madera-Lopez, Ruben Gomez-Nunez, and Fermin Celaya-Macias.   Mr. Riojas went on to allege that the three H-2A workers were wrongfully terminated on June 28, 1996.  He further alleged that the three were provided less work than other employees and that  they had claims for breach of contract, fraud, and violation of the H-2A regulations.
 

 The legal assistance provided to the three aliens in this case by TRLA apparently violated LSC regulations on restrictions on legal assistance to aliens as found in 45 CFR §1626.

 The relevant regulatory language is as follows:
 

 Section 1626.5 Alien status and eligibility

 Subject to all other eligibility requirements and restrictions of the LSC Act and regulations and other applicable law, a recipient may provide legal assistance to an alien who is present in the United States and who is within one of the following categories:
 . . .

 (f) An alien who meets the requirements of §§1626.10 or 1626.11

 Section 1626.11   H-2 Agricultural workers.

 (a) Nonimmigrant agricultural workers admitted under the provisions of 8 U.S.C. 1101(a)(15)(h)(ii), commonly called H-2 workers, may be provided legal assistance regarding matters specified in paragraph  (b) of this section.

 (b) The following matters which arise under the workerÕs specific employment contract may be the subject of legal assistance by an LSC-funded program:

 (1) wages;

 (2) housing;

 (3) transportation; and

 (4) other employment rights as provided in the workerÕs specific contract under which the nonimmigrant worker was admitted.

 Any argument that this regulatory language is unclear as to when an alien must be present is missing the plain language of the regulation stating that Òa recipient may provide legal assistance to an alien who is present in the United States.Ó  Put simply the alien must be physically present in the United States in order to be provided with legal assistance from the recipient legal services program.

 No amount of wishful thinking changes the wording of the regulation to state that Òlegal assistance may be provided to an alien who is not present in the United States.Ó  The regulation quite clearly defines the type of alien who may be provided legal assistance as one who is present in the United States.  By definition, an alien who is not present in the United States may not receive such assistance.  And from all indications, the three aliens being assisted by TRLA were not present when such assistance was rendered.

 If the statement by the LSC President at the March 3, 1999 appropriations hearing that Òno violations of LSC regulations would be tolerated by the CorporationÓ is a true statement of LSCÕs position, then TRLAÕs legal assistance to three aliens who were not present in the United States at the time of the assistance constitutes a violation of LSC regulations which should not be tolerated.

 Moreover, LSC has been directed by the language which accompanied the House of Representatives version of the Fiscal Year 2000 appropriations bill to notify Congress in advance of any proposed change to the LSC regulation.  Absent any such change, which would runs the risk of violating the clear meaning of the appropriations language on restrictions on legal assistance to aliens which gave rise to the regulation, LSC is obligated to enforce the regulation with the present language.

 To knowingly allow a program like TRLA, already fined by LSC for violating Congressional appropriations law, to provide legal assistance to aliens who are not present in the United States is to establish a policy that LSC will tolerate not only violations of its regulations but violations of restrictions imposed through appropriations law.
 

 The legal assistance provided to the three aliens in this case by TRLA is also an apparent violation of federal appropriations law.

 The current appropriations law governing LSC, Public Law 105-277, 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;
 

 The legal assistance being rendered by TRLA in this case is for three aliens who were not present in the United States when that assistance was being rendered. In the absence of that physical presence, that representation violates federal appropriations law which precludes such assistance when the alien is not present.

 Any argument that TRLAÕs assistance is consistent with the appropriation statuteÕs language is an argument that the word 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 ÒisÓ 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 during the deliberations of the Erlenborn Commission comes even close to providing a scintilla of evidence that the presence requirement contained within the appropriations law was meant by its authors to allow legal assistance when the alien is not present in the United States.

 First, LSCÕs own briefing paper contained in the materials presented at the February 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 1626.

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

 The plain meaning quite clearly is that an alien must be physically present in the United States to be eligible for legal assistance and there is absolutely nothing in the legislative history that contradicts the plain meaning.

 Even the written statement of TRLA included in the public record of the Erlenborn Commission fails to present anything remotely resembling legislative history of the appropriations rider language in support of its view that the law should be interpreted to mean something other than its plain meaning.  The TRLA statement contained in the public record of the Erlenborn Commission dated March 27, 1999 states:
 

  ÒThere appears to be no instructive legislative history
  on the meaning of Ôis presentÕ as used in the
  legislative rider in 1986 nor in any of the other years
  in which it has appeared in the appropriations acts
  (1984 to the present).Ó

 Finding nothing whatsoever in the legislative history of the appropriations rider to support the view that Congress meant Òis present in the United StatesÓ to mean Òis not present in the United States,Ó  TRLAÕs statement went on to attempt to argue that the 1986 Immigration Reform and Control Act (IRCA) somehow dictates that the plain meaning of the subsequent appropriations rider should not be followed.  This view of statutory construction is based on the absurd and insupportable notion that Congressional appropriations riders do not have the legal authority to curtail an interpretation of prior statutory law.    In reality, riders to appropriations laws routinely curtail activities which in prior fiscal years may have been permissible.  To find examples of this, one need look no further than the restrictions of legal services activities which were first set forth in Public Law 104-134.

 Despite the novel view, implicit in the TRLA analysis, that appropriations riders passed by Congress may not restrict activities that may have previously been allowed by a program which receives federal funds, no legal analysis whatsoever was presented by TRLA or any other participant supporting such a view.

 Even if the language in IRCA explicitly allowed legal services lawyers to provide legal assistance to aliens who are not present in the United States at the time of that assistance, and IRCA clearly does not contain such language, nothing would prevent Congress in exercising its appropriations authority under Article I of the Constitution from withholding funding for activities which had previously been allowed.

 For LSC to take the position that Congress does not possess the authority to use appropriations riders to restrict activities by legal services lawyers is tantamount to LSC endorsing the view that it has authority to pick and choose which of the restrictions imposed by Congress it will enforce.

 The TRLA argument that their somewhat strained interpretation of IRCA supersedes the plain meaning of the language in the subsequent appropriations riders, which requires that an alien must be present in the U.S. to obtain legal assistance, is directly contrary to the position of LSC which successfully defended the authority of the appropriations rider restrictions found in Public Law 104-134 in Legal Aid Society of Hawaii, et al., v. Legal Services Corporation, 145 F.3d 1017.

 Any argument by TRLA or others that Congress may not amend substantive law in an appropriations statute is flatly contradicted by a 1992 Supreme Court decision which explicitly found that Congress Ò...may amend substantive law in an appropriations statute...Ó Robertson v. Seattle Audubon SocÕy, 112 S. Ct. 1407, 1414 (1992).

 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 FY 1996 restrictions went into effect, LSC officials have represented to Congress that the appropriations  restrictions were being scrupulously enforced.

 The legal argument implicitly made by Texas Rural Legal Aid, Inc. and Legal Services of North Carolina, Inc. is that the plain meaning of the presence requirement appropriations language should not be enforced by LSC.  Ironically, these two programs have both been fined by LSC for violations of law since the FY 1996 reforms went into effect.  Failure on LSCÕs part to enforce the requirements of appropriations law and LSCÕs own regulations makes a compelling argument that LSC has no interest in carrying out the reforms mandated by Congress.

 Critics of the legal services program have long made the case that the program is beyond reform.  Failure of programs already sanctioned for violating the law to follow the law, coupled by a failure of LSC to enforce the law, would provide more than ample evidence that the critics are right.
 

 Foreign Travel By TRLA

 According to Mexican farm workers employed in Kentucky, TRLA lawyers have traveled to Mexico as recently as this year soliciting clients.  As the letter in this case was not written until three years after the incidents which allegedly gave rise to the case, there is a very real question as to how TRLA came to be involved with this case.

 The possibility that TRLA has used taxpayer funds to visit Mexico to troll for 3-year old cases to file against Kentucky farmers raises serious legal and policy issues.  Such a practice belies the argument advanced by LSC that the waiting rooms of legal servicesÕ programs are so filled with deserving cases that only the most egregious matters can be taken.  If that were so, what possible justification can be made that foreign travel to dredge up old cases should be a priority?

 Given the illegalities found by LSC involving the 1998 Mexican trip of Legal Services of North Carolina, the foreign travel of TRLA should be subject to a LSC audit.  As was indicated in the March 3, 1999 LSC appropriations hearing, the LSC President has stated that TRLA is subject to spot audits as one of the consequences of the violation of law found by LSC in TRLAÕs Val Verde case.

 Other Apparent Abuses

 Since LSC came into existence more than 25 years ago, farmers have complained that legal services lawyers routinely file false or trumped up complaints against them, then use various tactics to increase the legal costs to the farmer so that he will be forced to settle the case rather than fight it out in court.  One such tactic to increase the cost to the farmer is filing the lawsuit where the farm worker lives as opposed to the county where the farm is located.

 In recent cases involving Kentucky farmers, TRLA has filed lawsuits in Texas.
A recent article quotes TRLA Executive Director David Hall as saying that trying lawsuits where the farm workers worked has not proved successful. [see: James Malone, ÒLegal fight prompts farmers to sue migrant workers first,Ó The Courier-Journal, August 20, 1999, page 1]  The article goes on to quote an attorney who has defended farmers from TRLA lawsuits:
 

  ÒEveryone who brings a (migrant) worker here
  is facing (potential) litigation in Laredo, Texas,Ó
  said Ricky Lamkin, the WurthsÕ lawyer, who has
  defended other farmers in migrant disputes.

  ÒIÕve done nothing wrong, but now IÕve got to
  defend myself in a courtroom 1,200 miles away,Ó
  he said.  ÒIÕve got a gun to my head.  ItÕs legal
  extortion.Ó   [see:  James Malone, ÒFarmer decries
  suit by migrant workers,Ó The Courier-Journal,
  June 28, 1999, page 1]

 Three years later Wyatt was stunned to get a $65,335 demand from TRLA to settle the workersÕ claims against him.  The suit said the workers were forced to live in poorly ventilated housing infested with insects and rats, that they were discriminated against and that Wyatt refused to drive them to town for groceries.

 The article quoted the housing inspector for Western Kentucky as stating that WyattÕs housing has passed inspection each year and the reporter writing the story found the housing to be comparable to a low-rent student apartment.

 Because TRLA lawyer Javier Riojas filed the case in Texas, Billy Wyatt had to obtain a Texas lawyer.  Not only was he out the $10,000 in legal fees he paid to the Texas lawyer but the article quoted him as saying going to trial would cost him $60,000.

 The article went on to quote Wyatt:
 

  ÒThis is just crazy,Ó Wyatt said.  ÒThe men did not
  want to work.  They refused to sign their contracts.
  What was I supposed to do?Ó

 While this complaint against TRLA in the Wurth case focuses on the fact that TRLA was providing legal assistance to aliens who were not present in the United States at the time of the assistance, the weaknesses in the underlying complaint against the Kentucky farmers is consistent with other abusive cases against farmers where the case is weak but the cost of litigation forces the farmer to settle.

 In a TRLA letter to Mr. Wurth and Mr. Scheer dated August 2, 1999, TRLA lawyer Javier Riojas purports to set out the case against the farmers in greater detail than the earlier letter, allegedly as a result of a TRLA Òinvestigation.Ó  On page 3 of the letter, Mr. Wurth is quoted as telling the U.S. workers that there is no work available at the time because there is no harvesting of Òtomatoes, or onions.Ó  Considering the fact that the Wurth farm does not grow onions nor are onions a Western Kentucky crop, one wonders about the accuracy of the quote.

 The weakness of the TRLA case against Mr. Wurth is further illustrated by the claim on page 8 of the TRLA letter that the housing for the workers Òwas located in a flood zone.Ó   According to Mr. Wurth, the claim that the housing was in a flood zone was absurd since the area was an uplands area.  Moreover, a soil map of the area provided by the U.S. Department of Agriculture Natural Resources Conservation Service, prepared in cooperation with the Graves County Conservation District, lists the major landform as ÒuplandsÓ and in the entry for ÒFrequency of flooding:Ó the government report lists, unambiguously, ÒNone.Ó

 Despite the many obvious weaknesses of the charges against Mr. Wurth and Mr. Scheer as TRLA made its demands on alleged incidents from three years prior to the letter, TRLA had no apparent reluctance to demand $194,032.72 from the farmers. The TRLA letter stated, ÒYou may think these figures are excessive.Ó  No doubt  - especially whatever portion was tied to the non-existent problem of worker housing being located on a non-existent flood plain.
 

 LSC regulations state that legal assistance may be provided  Òto an alien who is present in the United StatesÓ and who fits one of several enumerated categories.  There is no evidence that any of the three aliens who received legal assistance in this case was present in the United States when that assistance was being rendered.

 Public Law 105-277, the current appropriations law governing LSC, incorporates language from Public Law 104-134 which states:
 

 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; (emphasis added)

 LSC lacks the legal authority to amend federal appropriations law and for it to attempt to do so would make a compelling case to Congress that LSC cannot be trusted to faithfully execute the laws which it is charged with enforcing under the LSC Act.
 

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