Devin Nunes Learns That If He’s Going To Sue For Suggesting His Family Hired Undocumented Workers, Part Of The Lawsuit Is Finding Out If The Workers Are Documented
from the that's-how-discovery-works,-buddy dept
Well, well, well. As you may recall, back in 2019 Devin Nunes and his bumbling lawyer Steven Biss sued Esquire magazine and reporter Ryan Lizza because Nunes really did not like this article about Nunes’ parents and their family farm, which is actually in Iowa, rather than California as many people believed. It’s an interesting article, in large part because of the way the town sort of freaked out when they realized Lizza was working on an article. The headline of the article talks about a “politically explosive secret,” and I took it to mean the fact that the farm that Nunes’ regularly talked about had (very quietly) moved to Iowa, rather than staying in California. But, there is at least a vague suggestion that the farm might hire undocumented workers, since that was standard practice for farms in that part of Iowa. Lizza’s article doesn’t come out and say that, but it does note this:
Other dairy farmers in the area helped me understand why the Nunes family might be so secretive about the farm: Midwestern dairies tend to run on undocumented labor. The northwest-Iowa dairy community is small. Most of the farmers know one another, and most belong to a regional trade group called the Western Iowa Dairy Alliance (though WIDA told me NuStar is not a member). One dairy farmer said that the threat of raids from ICE is so acute that WIDA members have discussed forming a NATO-like pact that would treat a raid on one dairy as a raid on all of them. The other pact members would provide labor to the raided dairy until it got back on its feet.
In every conversation I had with dairy farmers and industry insiders in northwest Iowa, it was taken as a fact that the local dairies are wholly dependent on undocumented labor. The low unemployment rate (it’s 2 percent in Osceola County), the low profit margins in the dairy business, and the global glut of milk that keeps prices low make hiring outside of the readily available pool of immigrants from Mexico and Guatemala unthinkable.
“Eighty percent of the Latino population out here in northwest Iowa is undocumented,” estimated one dairy farmer in the area who knows the Nunes family and often sees them while buying hay in nearby Rock Valley. “It would be great if we had enough unemployed Americans in northwest Iowa to milk the cows. But there’s just not. We have a very tight labor pool around here.” This person said the system was broken, leaving dairy farmers no choice. “I would love it if all my guys could be legal.”
And, at the time, you could see how Nunes, as a high ranking Republican Congress member, thought that… might not look good, given the GOP’s stance on undocumented workers and immigration.
So, Nunes sued. And then, his family and their farm also sued (also using Biss). The cases weren’t going well for Nunes or his family (they were going really poorly actually), but they got a reprieve thanks to a truly bizarre 8th Circuit ruling that argued that a tweet Lizza made after the lawsuit had been filed could be defamatory in “republishing” the article while on notice that Nunes claimed its false. You can read that link to understand why that ruling is bad and wrong, but the case has continued.
That said, there has been some craziness around the depositions in the case including one involving an attempted deposition of an employee of the Nunes’ farm, NuStar Farms. The employee showed up with a lawyer hired by the farm, who advised the employee to plead the 5th regarding questions about his documents. Steven Biss then interrupted the deposition, paused it, and when they came back the lawyer said he was no longer representing the employee. There was a lot more of this kind of thing as well. Just go read the original post.
Anyway, that case has continued, and as Liz Dye over at Above the Law first noted, if you’re going to sue someone claiming it’s defamation to merely suggest that all the farms around where your family’s farm is hire undocumented workers, well, whether or not your farm has undocumented workers is one of those things that’s going to come out in court.
Lizza and Hearst have filed quite an incredible motion for summary judgment. And, at the very least it suggests you’d have to be not very smart at all to sue for defamation over a claim regarding whether or not there were undocumented workers on your farm. While parts of the motion are redacted, it’s not too difficult to see that much of what’s in there suggests that the Nunes family not only likely hired undocumented workers, but they knew about it. Specifically, NuStar, after submitting an employee roster to the Social Security Agency was informed that the majority of their employees received “no match” notices, which does not definitively prove that they are undocumented, but certainly raises… concerns about their documentation.
NuStar produced a verified employee roster with their names, proffered SSNs, dates of employment, and dates of birth… In response to the Court’s order, the SSA reported that data for 76%, or 243 of 319, of NuStar employees listed did not match its records….
This data is consistent with two so-called “no-match” letters the SSA sent NuStar in November 2019 and December 2020… The letters state that, for tax year 2018, 20 of 27 NuStar employees (74%) did not match SSA records , and for tax year 2019, 14 of 19 employees (74%) did not match….
Also, during Nunes’ testimony, he revealed that he, personally had first-hand knowledge of his family’s hiring practices.
The Congressman testified that he has “firsthand knowledge” of how his family hires farm workers, from when he worked with them in California on ventures they “all… shared”:
I mean, I do have obviously firsthand knowledge… about when I did it way back in the day, the way that we did it. I was trained by my mother and my grandmother… on what to do. … I can’t imagine that they changed when they went there.”
As the lawyers note in the filing, the claim that the farm couldn’t possibly know whether or not the workers were undocumented is at odds with the law:
Perhaps, like the Congressman, the NuStar Plaintiffs will persist in claiming ignorance until an employee has said out loud that they are unauthorized. But that is not even the standard the government must meet to prosecute knowing hire violations under federal immigration law….
Nunes also claimed that as an employer to look into whether or not someone here is undocumented is not allowed. But the motion points out that there is, in fact, a E-Verify tool provided by the government that tons of employers used. Nunes, during deposition, dodged questions about using E-Verify, but the motion points out that he didn’t seem to feel that way as a Congressman who talked about verification all the time.
The Congressman’s position in this case is that any employer verification to “find out whether somebody’s here illegally” is “discriminatory and illegal.”… (“Even if the [verification] tool existed, [employers] can’t use it.”). His reasoning extends to the government’s tool E-Verify, which is authorized by statute, allows instant comparison of the I-9 to government records, and is used by over a million employers…. When asked if E-Verify may be used lawfully, he would not answer directly, citing its “discriminatory nature” and saying “it is unlawful to use E-Verify to target people . . . .” … (“Q. Would it surprise you to learn that the United States government uses it? A. That’s your opinion.”). [REDACTED] Because “there is no way” to verify someone’s status, he claims the only way one could know a worker is undocumented is if the worker admits it—he has never known an “illegal” worker because although he has “worked with people in agriculture . . . [his] whole life[,] [n]ot one person ever came up to [him] and said, oh, I’m illegal. Not one.”
The above testimony is at odds with the Congressman’s 19-year career as a legislator, when he continually tried to pass laws that addressed I-9 verification requirements for dairy workers and confronted the reality that unauthorized workers are ubiquitous on dairy farms.
Between 2003 and 2019, the Congressman co-sponsored eight bills (voting for a ninth) on the shortage of authorized farm workers, particularly in dairies….. The bills sought to amend a visa (H-2A) that applies only where “there are not sufficient workers who are able, willing, and qualified” in the U.S.—i.e., only where there is a labor shortage—to cover farm and dairy workers. … These efforts mirror his public statements where, [REDACTED] he approvingly cited the “Bracero Program,” which until 1964 allowed Mexican nationals to work in the United States on short contracts in agriculture…. The Congressman has said in interviews that “security along with a permit system of some kind, and then a verification system” has “always been the solution.”
The Congressman’s legislative record and public statements belie his testimony that verifying work eligibility is “illegal,” and “there is no way . . . to know” authorization status…. As a lawmaker, far from treating E-Verify as “illegal,” he tried three times to make an electronic verification “system modeled after . . . E-Verify” mandatory, publicly lauding it. … (saying on Fox News, E-Verify has “worked really, really well” and should be mandatory).
The Congressman’s bills also contradict his testimony that “nobody’s hiring unauthorized workers.” … The Farm Workforce Modernization Act (“FWMA”) of 2019 (which he cosponsored) and 2021 (which he voted for) would give status to unauthorized workers already working in the U.S. yet who are “inadmissible or deportable from the United States,” i.e., unauthorized…. This would make little sense if “nobody” hired unauthorized workers because it is “impossible,” as the Congressman claimed at his deposition…. (in Fox News interview, saying, “[E]veryone knows that, in this country, we have got millions of people that are here on either expired permits, or they never had a permit in the first place.”).
Oh, and this:
Six times, the Congressman tried to eliminate penalties for farm workers who falsified SSNs.
Huh. They also mention nine other bills he worked on regarding farm workers. Yet, in deposition when asked if he recalls any bills he co-sponsored related to labor in the agriculture industry, Nunes answered “No.” The filing notes that this deposition took place just a few months after he had voted for just such a bill.
There’s a lot more in the filing, but, really, it’s kind of astounding that this case was ever filed in the first place. It’s equally astounding that Biss and Nunes didn’t think that all of this would come out.