UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER 2

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1 pepartmr9t fle,.1!istice UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 010 NOV -3 OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER 2 PM 1:45 CHIEF, '"--ostp UNITED STATES OF AMERICA, COMPLAINANT, v. MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT D/B/A MARICOPA COMMUNITY COLLEGES, ORIGINAL 8 U.S.C. 1324b PROCEEDING OCAHO CASE NO RESPONDENT. UNITED STATES' MOTION TO STRIKE AND REPLY TO AFFIRMATIVE DEFENSES Pursuant to the Rules of Practice and Procedure, 28 C.F.R. 68.9(d), Complainant, United States of America, by the Office of Special Counsel for Immigration-Related Unfair Employment Practices ("Office of Special Counsel"), moves to strike, under Federal Rule of Civil Procedure, Rule 12(0(2), Respondent, Maricopa County Community College District's affirmative defenses. I. BACKGROUND On August 30, 2010, pursuant to the anti-discrimination provision of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1324b, Complainant filed a Complaint before the Office of the Chief Administrative Hearing Officer ("OCAHO") alleging discriminatory treatment of certain individuals in the hiring and employment eligibility verification process by Respondent in violation of 8 U.S.C. 1324b(a)(1)(B) and (a)(6). Count I of the Complaint alleges that

2 "Respondent knowingly and intentionally committed document abuse discrimination against the Charging Party and other similarly situated individuals when it required that they provide specified documents, including employment eligibility documents issued by [the former Immigration and Naturalization Service] INS or [the U.S. Department of Homeland Security] DHS in order to verify their employment eligibility." Compl Count II alleges that "[s]ince at least 2008, and until January 4, 2010, Respondent's standard practice and regular operating procedure was to request that non-u.s. citizen new hires produce specified documents issued by INS or DHS during the hiring process[,]...in violation of 8 U.S.C. 1324b(a)(1)(B)." Compl II. STANDARD OF REVIEW As a threshold matter, OCAHO Rules of Practice and Procedure ("Rules of Practice") provide that when a Respondent raises affirmative defenses, a statement of facts must be provided in support of each affirmative defense. 28 C.F.R. 68.9(c)(2) ("The answer shall include... [a] statement of facts supporting each affirmative defense."). This Court has recognized that "[b]ecause OCAHO rules require that a statement of facts be filed in support of each affirmative defense... more is required to survive a motion to strike in this forum than under the minimal notice pleading called for by the [Federal Rules of Civil Procedure]." United States v. LFW Dairy Corp., 10 OCAHO no. 1129, 2 (2009) (Thomas, J.). Although motions to strike affirmative defenses are not directly contemplated by the Rules of Practice, this Court has consistently turned to Federal Rule of Civil Procedure, Rule 12(f) to consider motions to strike affirmative defenses in actions subject to its jurisdiction. See United States v. Great Earth Companies, Inc., 9 OCAHO no. 1070, 8 (2001) (granting in part and denying in part Rule 12(f) motion to strike in action brought under 8 U.S.C. 1324b); LFW Dairy Corp., 10 OCAHO no at 2 (granting Rule 12(f) motion to strike in action brought 2

3 under 8 U.S.C. 1324a); United States v. De Leon - Valenzuela, 6 OCAHO no. 899, 878, (1996) (Thomas, J.) (granting Rule 12(f) motion to strike in action brought under 8 U.S.C. 1324c). Federal Rule of Civil Procedure, Rule 12(f) provides that a court "may strike from a pleading an insufficient defens. e or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). While motions to strike affirmative defenses are "highly disfavored in the law," such motions are granted "when the asserted affirmative defenses lack any legal or factual bases." United States v. Makilan, 4 OCAHO no. 610, 202, 205 (1994) (citing United States v. Task Force Security, Inc., 3 OCAHO no. 533, 1341, 1344 (1993)); see LFW Dairy Corp., 10 OCAHO no at 2 (an affirmative defense is to be stricken "if there is `no prima facie viability of the legal theory upon which the defense is asserted') (quoting United States v. Chavez -Ramirez, 5 OCAHO no. 774, 408, 410 (1995)); Hardy v. Indymac Fed. Bank, 263 F.R.D. 586, 595 (E.D. Cal. 2009) ("A motion to strike under [Rule] 12(f) is... the proper vehicle for a plaintiff to challenge a legally insufficient affirmative defense."). Further, because the Rules of Practice require a Respondent to provide more factual support to survive a motion to strike than under the minimal notice pleading standard of the Federal Rules of Civil Procedure, affirmative defenses must be stricken "if the supporting statement of facts is wholly conclusory." LFW Dairy Corp., 10 OCAHO no at 2 (quoting Chavez -Ramirez, 5 OCAHO at 410); United States v. Watson, 1 OCAHO no. 253 (1990); United States v. Broadway Tire, 1 OCAHO no. 226, 1506, 1507 (1990). III. ARGUMENT It is appropriate to grant a motion to strike where the affirmative defenses raised by Respondent are invalid as a matter of law or are inadequately supported by facts. Permitting these affirmative defenses to remain unresolved will simply lead to the wasteful expenditure of 3

4 time and resources that will arise from litigating spurious legal arguments prior to trial. See Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Here, Respondent's affirmative defenses are all invalid as a matter of law, or inadequately supported by facts. Therefore, each affirmative defense should be stricken. A. Respondent's First Affirmative Defense of Failure to State a Claim Upon Which Relief Can Be Granted Should be Stricken Because It Is Devoid Of Any Factual Support Respondent's first affirmative defense, failure to state a claim for which relief can be granted, must be stricken, because no facts have been asserted to support this defense as required by 28 C.F.R. 68.9(c)(2), I Respondent merely states that "Complainant cannot demonstrate that Respondent acted with discriminatory intent, as required under 8 U.S.C. 1324b." Ans. at 4. This statement cannot be read to support a defense that the United States has failed to state a claim. The touchstone of whether a claim upon which relief could be granted has been stated is not what a complainant can prove, but what a complainant has pled. 2 Fed. R. Civ. P. 8(a)(2) (requiring that a pleading that states a claim for relief contain "a short and plain statement of the claim showing that the pleader is entitled to relief"). Here, Respondent's assertion that Complainant cannot meet its burden of establishing discriminatory intent is an issue for the summary decision stage and irrelevant to a failure to state a claim defense. This conclusory To the extent this defense preserves Respondent's right to assert that the United States has failed to state a claim, Respondent is time barred from moving to dismiss on this basis pursuant to 28 C.F.R (a). Although this provision does not directly contemplate the time within which such a motion must be filed, this Court has interpreted 68.10(a) as an analog to Federal Rule of Civil Procedure, Rule 12(b)(6). Diaz v. Pacific Maritime Ass 'n, 9 OCAHO no. 1108, 7 (2004) ("A motion to dismiss under is akin to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).") (citations omitted). Rule 12 of the Federal Rules of Civil Procedure provides that a motion seeking to dismiss for failure to state a claim upon which relief can be granted "must be made before pleading if a responsive pleading is allowed." Fed. R. Civ. P. 12(b). 2 The United States has pled discriminatory intent on the part of Respondent by alleging that Respondent intentionally treated non-u.s. citizens differently or less favorably because of their status. See Comp!. IN 32, 37-38; United States v. Marcel Watch Corp., 1 OCAHO no. 143, 988, 1001 (1990) ("Employment discrimination jurisprudence turns on the basic question [of] whether an employer who intentionally treats persons differently on a prohibited basis violates antidiscrimination laws, regardless of what motivates that intent."). 4

5 contention is further devoid of any factual support. Bare assertions that a plaintiff has failed to state a claim do not give the opposing party fair notice of the defense. Success Is Yours, Inc. v. LifeSuccess Pub., LLC, No. CV , 2010 WL , *1 (D. Ariz. Oct. 13, 2010). Accordingly, a clear basis exists for striking the first affirmative defense. B. Respondent's Second Affirmative Defense Should Be Stricken Because It Is Impertinent and Unsupported By The Facts Respondent's second affirmative defense asserts a lack of subject matter jurisdiction over Complainant's claims of national origin and citizenship status discrimination. Federal Rule of Civil Procedure Rule 12(f) permits the striking of any defenses that are "insufficient," "immaterial" or "impertinent." Fed. R. Civ. P. 12(f); Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994) ("Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded.... Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question.") (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 1382, at , 711 (2d ed. 1990)). Here, the affirmative defense that OCAHO lacks jurisdiction over national origin discrimination claims asserted against Respondent is impertinent and immaterial because Complainant has not asserted a national origin discrimination claim against Respondent. The Complaint asserts only that Respondent engaged in document abuse and citizenship status discrimination. Compl. 113 ("this suit arises out of the discriminatory conduct by the [Respondent] in violation of... 8 U.S.C. 1324b(a)(1)(B) and (6)"); see also id. at I 30-32, 35, Accordingly, the affirmative defense that OCAHO lacks jurisdiction over a claim of national origin discrimination must be stricken. 3 The Complaint's only mention of national origin discrimination is found in the description of the claims made by the Charging Party in the charge he filed with the Office of Special Counsel. See Comp!. 9. 5

6 The affirmative defense that OCAHO lacks jurisdiction over the United States' citizenship status discrimination claim based entirely on Respondent's "information and belief' that "Complainant [sic] and other purported class members are not a 'protected individual' as that term is defined [in 8 U.S.C. 1324b]" must be stricken. Ans. at 5. Facts based on mere "information and belief," without any further elaboration, are conclusory and speculative, and therefore insufficient to support a valid affirmative defense. 4 Barnes v. AT&T Pension Benefit Plan-Nonbargained Program, --- F. Supp. 2d ---, 2010 WL , at *4 (N.D. Cal. Jun. 22, 2010) (applying standard of review imposed by Bell Atlantic v. Twombly, 550 U.S. 544 (2007), to affirmative defenses and holding that an affirmative defense cannot be supported merely by conclusory statements asserting the existence of the defense without some identifiable fact); see Lee v. Airtouch Commc 'ns, 6 OCAHO no. 901, 891, 900 (1996) (Thomas, J.) (stating that allegations "based on information and belief' require "sufficient factual basis" to survive a motion to dismiss). Accordingly, a clear basis exists for striking this affirmative defense. C. Respondent's Third Affirmative Defense of "Waiver, Estoppel and/or Laches" Should Be Stricken Because These Defenses Are Invalid as a Matter of Law and Unsupported By Facts Respondent's third affirmative defense of "Waiver, Estoppel and/or Laches" should be stricken because these defenses are invalid as a matter of law and unsupported by any relevant factual assertions. 1. The affirmative defense of waiver must be stricken because it is unsupported by any relevant facts Respondent's waiver defense, Ans. at 5, is legally insufficient. The equitable doctrine of waiver requires that a respondent bear the heavy burden of showing "the intentional 4 Respondent presently has in its possession factual information pointing to the existence of class members who are a "protected individual" as defined in 8 U.S.C. 1324b. The defense that OCAHO lacks subject matter jurisdiction of the citizenship status discrimination claim in this matter is without merit. Should the Court deny the motion to strike this affirmative defense, Complainant reserves the right to move to strike this affirmative defense on summary decision after the development of the factual record. 6

7 relinquishment of a known right." LFW Dairy Corp., 10 OCAHO no at 6 (citations omitted); Groves v. Prickett, 420 F.2d 1119, 1125 (9th Cir. 1970); see Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1170 (9th Cir. 2006) ("[A] waiver is the voluntary relinquishment... express or implied of a legal right or advantage.") (internal citations omitted). Courts emphasize that a party cannot establish the waiver of a right absent "a clear showing of an intent" to do so, and that cases where that intention is in doubt are to be decided against a finding of waiver. See Prieto v. Paul Revere Life Ins. Co., 354 F.3d 1005, 1013 n.12 (9th Cir. 2004); see In re United Marine Shipbuilding, Inc., 158 F.3d 997, 1001 (9th Cir. 1998) (holding that disbursement by the IRS of a tax refund did not constitute waiver of its right of setoff with regard to the refund because the disbursement was a mistake). Here, Respondent has set forth no facts indicating a waiver by the United States. Even accepting as true Respondent's statement that Complainant withheld assistance in revising certain forms, Ans. at 5, Respondent has alleged no facts supporting a clear intent by the United States, either express or implied, to relinquish its right to enforce the anti-discrimination provision of the INA against Respondent. 5 Further, the alleged refusal by Complainant to assist Respondent is immaterial to the question of waiver because any assistance is unrelated to the United States' right to pursue this action. Indeed, 8 U.S.C. 1324b does not create any legal obligation by the United States to provide guidance to employers that are under investigation. Accordingly, the affirmative defense of waiver must be stricken. 5 Complainant provided Respondent guidance throughout the investigation of this matter in the form of verbal and written comments on the Non-U.S. Citizen Tax Data Form. Indeed, Complainant's guidance is reflected in the changes Respondent implemented in January Moreover, on March 23, 2010, the Office of Special Counsel issued Respondent a technical assistance letter on proper procedures for reverification of employees' employment eligibility. 7

8 2. The affirmative defense of estoppel must be stricken because it is unsupported by relevant facts This Court has consistently rejected a defense of equitable estoppel asserted against the United States. See, e.g., United States v. Agripac, Inc., 8 OCAHO no. 1028, 399, 413 n.9 (1999) (Thomas, J); United States v. Corporate Loss Prevention Assocs., Ltd., 6 OCAHO no. 908, 967, (1997); United States v. Tom & Yu, 3 OCAHO no. 412, 163, (1992) (citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 379, 380 (1947)). In addition, federal case law has held that the United States is virtually impervious to an equitable estoppel claim. OPM v. Richmond, 496 U.S. 414, 422 (1990) (noting that "we have reversed every finding of estoppel that we have reviewed"); Merrill, 332 U.S. at 380. The Ninth Circuit has imposed a stringent test for invoking equitable estoppel against the federal government. Specifically, equitable estoppel requires actual misconduct, which is defined as a "deliberate lie" or "a pattern of false promises." Socop-Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir. 2001) (quoting Mukherjee v. INS, 793 F.2d 1006, 1009 (9th Cir. 1986)). "A mere failure to inform or assist" does not justify its application. Gilmore v. Lujan, 947 F.2d 1409, 1412 (9th Cir. 1991) (citing Wagner v. Director, FEMA, 847 F.2d 515, 519 (9th Cir. 1988)); Lavin v. Marsh, 644 F.2d 1378, (9th Cir. 1981); see also Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir. 2000) ("Neither the failure to inform an individual of his or her legal rights nor the negligent provision of misinformation constitute affirmative misconduct."). Here, Respondent's mere allegation that Complainant withheld assistance from Respondent in revising Respondent's forms cannot be equated to the "deliberate lie" or "pattern of false promises" required for a valid equitable estoppel defense. Again, as there is no legal obligation of the United States to provide assistance or guidance to an employer under investigation for violations of 8 U.S.C. 1324b, Respondent, therefore, has not, and cannot, allege any misconduct or

9 wrongful act on the part of the United States sufficient to support this affirmative defense. Accordingly, this affirmative defense is legally insufficient and should be stricken. 3. The affirmative defense of laches cannot be raised against the United States as a matter of law The law is firmly established that the affirmative defense of laches cannot be raised against the United States. United States v. Summerlin, 310 U.S. 414, 416 (1940) (noting it is "well settled" the United States is not subject to the defense of laches); Bresson v. C.LR., 213 F.3d 1173, 1176 (9th Cir. 2000) (same); Chevron, U.S.A., Inc. v. United States, 705 F.2d 1487, 1491 (9th Cir. 1983) (same); Olshausen v. CIR., 273 F.2d 23, 28 (9th Cir. 1960) (same). OCAHO case law has followed this precedent. LFW Dairy Corp., 10 OCAHO no at 8 ("longstanding precedent makes clear as well that laches is unavailable as a defense against the United States") (citing Summerlin, 310 U.S. at 416). Accordingly, this defense is invalid as a matter of law and must be stricken. D. Respondent's Fourth Affirmative Defense of Good Faith Should Be Stricken Because It Is Invalid as a Matter of Law Respondent's fourth affirmative defense, that it "has at all times acted reasonably and has taken good faith efforts to comply with all applicable requirements of federal immigration laws[,]" Ans. at 5, is an invalid affirmative defense and should be stricken. This Court has not recognized claims of good faith compliance with immigration law as an affirmative defense to a claim of document abuse under the anti-discrimination provision of the INA. United States v. Diversified Tech. & Servs. of Virginia, Inc., 9 OCAHO no. 1095, 20 (2003) (Thomas, J.); United States v. Fairfield Jersey, Inc., 9 OCAHO 1072, 4, 5-6 (2001) (Thomas, J.). In Diversified, this Court held that the "[flack of intent to discriminate is not an affirmative defense in a case arising under 1324b" because such a defense is simply a denial of an element of the complainant's case. 9 OCAHO no at 20. "A true avoidance or 9

10 affirmative defense, unlike an employer's proffer of a nondiscriminatory reason, is either a pleading that admits the allegations of the complaint but suggests some other reason why there is no right of recovery, or one that introduces allegations outside the plaintiff's prima facie case which therefore cannot be raised by a simple denial in the answer." Id. Similarly, in analyzing the document abuse provision of the anti-discrimination provision of the INA, this Court in Fairfield Jersey, Inc. declined to "convert the presentation of a nondiscriminatory reason into an affirmative defense." 9 OCAHO no at 4. This Court noted that while "Congress has explicitly created good faith affirmative defenses in a number of employment-related statutes based upon narrowly drawn exceptions specifically set forth in the governing legislation[, s]uch a defense is conspicuously absent from 1324b." Id. at 5-6. This Court's determinations in both Diversified and Fairfield Jersey, Inc. apply regardless of whether a claim relies on direct or indirect evidence of an employer's discriminatory unfair employment practice. Accordingly, the defense that Respondent was attempting to comply with the requirements of federal immigration law, presumably the aspects of the law that prohibit an employer from knowingly employing unauthorized workers, must be rejected, and this affirmative defense must be stricken. 1 0

11 IV. CONCLUSION Wherefore, Complainant requests that the Court enter an order striking these affirmative defenses from Respondent's Answer and require Respondent to file an Amended Answer within 10 days. Respectfully submitted, FOR COMPLAINANT UNITED STATES OF AMERICA: KATHERINE A. BALDWIN Deputy Special Counsel ELIZABETH I. HACK Special Litigation Counsel - r. IFE DEINES RONALD LEE Trial Attorneys U.S. Department of Justice Civil Rights Division Office of Special Counsel for Immigration- Related Unfair Employment Practices 950 Pennsylvania Ave., N.W. Washington, DC Telephone: (202) Facsimile: (202) November 3, 2010

12 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER ) UNITED STATES OF AMERICA, ) ) COMPLAINANT, ) ) v. ) ) MARICOPA COUNTY COMMUNITY ) COLLEGE DISTRICT D/B/A ) MARICOPA COMMUNITY ) COLLEGES, ) ) RESPONDENT. ) ) 8 U.S.C. 1324b PROCEEDING OCAHO CASE NO. 10B00099 CERTIFICATE OF SERVICE I hereby certify that United States' Motion to Strike and Reply to Affirmative Defenses was served via certified mail this 3rd day of November, 2010, to the following at the address indicated: JOSEPH T. CLEES LEAH S. FREED Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Esplanade Center III 2415 East Camelback Road, Suite 800 Phoenix, AZ Date: November 3, 2010