and Submitted March 14, 2017 San Francisco, California
from the United States District Court for the Eastern
District of California, D.C. No. 2:13-cv-00904-TLN-EFB Troy
L. Nunley, District Judge, Presiding
Christopher Ho (argued) and Stacy Villalobos, The Legal Aid
Society - Employment Law Center, San Francisco, California;
Esmeralda Zendejas and Blanca A. Bañuelos, California
Rural Legal Assistance, Inc., Stockton, California; Michael
L. Meuter, California Rural Legal Assistance, Inc., Salinas,
California; for Plaintiff-Appellant.
P. Dixler (argued) and Peder K. Batalden, Horvitz & Levy
LLP, Burbank, California, for Defendant-Appellee.
A. Preciado and Joshua T. Stehlik, National Immigration Law
Center, Los Angeles, California; Jessica Hahn, National
Immigration Law Center, Washington, D.C.; for Amicus Curiae
National Immigration Law Center, Asian Americans Advancing
Justice - Asian Law Caucus, Asian Americans Advancing Justice
- Los Angeles, Bet Tzedek Legal Services, Centro Legal de la
Raza, Farmworker Justice, Jobs with Justice, National
Employment Law Project, New Orleans Workers' Center for
Racial Justice, UCLA Center for Labor Research and Education,
United Food and Commercial Workers International Union, and
Before: Stephen S. Trott, Kim McLane Wardlaw, and Ronald M.
Gould, Circuit Judges.
panel reversed the district court's dismissal of a
retaliation claim under the Fair Labor Standards Act.
plaintiff alleged that after he filed suit against his
employers in state court, the employers' attorney, acting
as their agent, retaliated against him by planning for U.S.
Immigration and Customs Enforcement to take him into custody
at a scheduled deposition and then to remove him from the
United States. The panel held that unlike the Fair Labor
Standards Act's wage and hour provisions, its retaliation
provisions apply to "any person" and do not require
that a defendant be the plaintiff's employer. The panel
remanded the case to the district court for further
employer's attorney be held liable for retaliating
against his client's employee because the employee sued
his client for violations of workplace laws? The district
court's answer was no. We respectfully disagree.
jurisdiction over this timely appeal pursuant to 28 U.S.C.
§ 1291, and we reverse and remand.
1995, plaintiff José Arnulfo Arias went to work as a
milker for Angelo Dairy. Three Angelos owned and operated the
dairy: Luis, Maria, and Joe ("Angelos"). When the
Angelos hired Arias, they did not complete and file a Form
I-9 ("I-9") regarding his employment eligibility in
the United States.
is a document required by U.S. Citizenship and Immigration
Services ("USCIS"), a component of our Department
of Homeland Security. USCIS explains the purpose of the I-9
and process as follows:
Form I-9 is used for verifying the identity and employment
authorization of individuals hired for employment in the
United States. All U.S. employers must ensure proper
completion of Form I-9 for each individual they hire for
employment in the United States. This includes citizens and
noncitizens. . . . Employers must retain Form I-9 for a
designated period and make it available for inspection by
authorized government officers.
U.S. Citizenship and Immigration Services, I-9,
Employment Eligibility Verification,
https://www.uscis.gov/i-9 (last updated Jan. 23, 2017).
of complying with federal law, the Angelos wielded it as a
weapon to confine Arias in their employ. When Arias informed
Luis Angelo in 1997 that he had been offered a position with
another dairy, Luis "responded that if [Arias] left to
work at the other dairy, [Luis] would report the other dairy
to federal immigration authorities as an employer of
undocumented workers, " which Arias was. This threat
caused Arias to forego his other employment opportunity and
to remain with the Angelos.
2006, Arias sued Angelo Dairy in California state court.
Arias alleged causes of action on behalf of himself and other
employees under California's Unfair Competition Law
("UCL"), Cal. Bus. & Prof. Code § 17200
et seq., for a variety of workplace violations,
including failure to provide overtime pay and rest and meal
periods. Later, he added a cause of action under
California's Private Attorneys General Act of 2004
("PAGA"), Cal. Lab. Code § 2698 et
seq. The Superior Court struck his representative claims
in the UCL and PAGA causes of action. The Court of Appeal
later issued a peremptory writ of mandate directing the
Superior Court to vacate its order as to the PAGA cause of
action. See Arias v. Superior Court, 63 Cal.Rptr.3d
272 (Cal.Ct.App. 2007), aff'd, 46 Cal.4th 969
(2009). The Superior Court then set a trial date of August
1, 2011, ten weeks before the state court trial, the
Angelos' attorney, Anthony Raimondo, set in motion an
underhanded plan to derail Arias's lawsuit.
Raimondo's plan involved enlisting the services of U.S.
Immigration and Customs Enforcement ("ICE") to take
Arias into custody at a scheduled deposition and then to
remove him from the United States. A second part of
Raimondo's plan was to block Arias's California Rural
Legal Assistance attorney from representing him. This double
barrel plan was captured in email messages back and forth
between Raimondo, Joe Angelo, and ICE's forensic auditor
Kulwinder Brar. Arias quoted these revealing exchanges in his
23. On June 1, 2011, Defendant RAIMONDO emailed Immigration
and Custom Enforcement ("ICE") Forensic Auditor
Kulwinder Brar, an employee of the U.S. Department of
Homeland Security. In this email, Defendant RAIMONDO supplied
Brar with information about Plaintiff's identity, and
asked Brar to ...