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Date: 04-18-2022
Case Style:
Case Number: 19-35526
Judge: Daniel P. Collins
Court: United States Court of Appeals for the Ninth Circuit on appeal from the United States District Court for the District of Idaho
Plaintiff's Attorney: Stuart A. Raphael, Sarah L. Bessell and Natalie Mendoza
Defendant's Attorney: Melia Amal Bouhabib and Elizabeth Leiserson
Description: Boise, Idaho employment lawyers represented Plaintiffs, who sued Defendants on force labor theories.
Plaintiffs were six citizens of Mexico who were recruited
to work as “Animal Scientists” at Funk Dairy in Idaho under
the “TN Visa” program for “professional” employees
established under the North American Free Trade
Agreement. But when plaintiffs arrived at the dairy, they
were instead required to work substantially as general
laborers. Plaintiffs alleged that defendants’ bait-and-switch
tactics violated applicable federal statutory prohibitions on
forced labor by, among other things, abusing the TN Visa
program in order to coerce plaintiffs to provide menial
physical labor.
For purposes of their summary judgment motion,
defendants conceded that all plaintiffs believed that their
ability to remain lawfully in the U.S. depended on their
continued employment at Funk Dairy. The panel concluded
that in light of that concession and its obligation, on review
of a grant of summary judgment to defendants, to construe
the evidence in the light most favorable to plaintiffs, a
reasonable jury could find that Funk Dairy knowingly
obtained plaintiffs’ labor by abusing the TN Visa process in
order to exert pressure on plaintiffs to provide labor that was
substantially different from what had been represented to
them and to federal consular officials. The panel held that,
so construed, Funk Dairy’s conduct violated the provisions
of Chapter 77 of Title 18 of the U.S. Code that prohibit
forced labor and trafficking of persons into forced labor.
Plaintiffs therefore asserted triable causes of action under the
civil suit provision of Chapter 77, 18 U.S.C. § 1595(a)
* * *
The TN Visa program, established “pursuant to the
provisions of Section D of Annex 1603” of NAFTA, allows
a citizen of Mexico or Canada to be admitted to the United
States for the purpose of “engag[ing] in business activities at
a professional level as provided for in such Annex.” See
8 U.S.C. § 1184(e)(2).1 The referenced Section D states that
the program only applies to a “profession set out in
Appendix 1603.D.1,” see NAFTA, Annex 1603.D.1,
December 17, 1992, 32 I.L.M. 612, 666, and that Appendix
lists dozens of different professions, see NAFTA, Appendix
1603.D.1, 32 I.L.M. at 668–70. The work must be
performed for “a United States entity,” which may include
an “individual,” see 8 C.F.R. § 214.6(b), but that entity need
not be the formal “employer” of the visa holder, see id.
§ 214.6(d)(3)(ii), (h)(1). A person granted a TN Visa may
be admitted “for a period not to exceed three years.” Id.
§ 214.6(e). The visa may be extended for additional periods
of up to three years upon application of the “United States
employer” of the beneficiary or, in the case of a foreign
employer, the “United States entity” for which the work is
performed. Id. § 214.6(h)(1). So long as the alien remains
qualified for a TN Visa and “continues to be engaged in TN
business activities for a U.S. employer or entity at a
professional level,” there “is no specific limit” on the
number of extensions that may be granted. Id.
§ 214.6(h)(1)(iv).
Outcome: Because the panel held that the district court erred in
dismissing plaintiffs’ federal claims, the panel also reversed
the district court’s decision to decline supplemental
jurisdiction over plaintiffs’ claims under Idaho state law
Plaintiff's Experts:
Defendant's Experts:
Comments: