HALL v. THOMAS

's proposed expert testimony is to satisfy these elements by causally linking a diminution in wages in a relevant labor market to defendants' alleged hiring of unauthorized workers.

Proper performance of a court's gatekeeping role under Federal Rule of Evidence 702 requires not only that a court determine that a qualified expert has reliably applied reliable methods to sufficient data to permit him to provide an opinion, but also that the opinion the witness purports to provide be actually helpful to determination of a fact in issue. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-592 (1993) ("Rule 702's `helpfulness' standard requires a valid . . . connection to the pertinent inquiry as a precondition to admissibility."); United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) ( en banc) ("The burden of establishing . . . helpfulness rests on the proponent of the expert opinion."); Fed.R.Evid. 702 (requiring that expert testimony "assist the trier of fact"). Expert testimony "does not assist the trier of fact unless the testimony has a justified . . . relationship to the pertinent facts." McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004) (citing Daubert, 509 U.S. at 591). This requirement stems from basic principles of relevancy: "expert testimony must be `relevant to the task at hand[:] . . . it [must] logically advance[] a material aspect' of the case." Id. at 1298-99 (quoting Daubert, 509 U.S. at 591). Courts have fleshed out the concept to clarify that, simply because an expert's conclusion may superficially appear relevant to and helpful in the determination of facts at issue, if it is too far divorced from the underlying data, it may ultimately prove unhelpful.

[T]he Supreme Court has noted that, in the context of this analysis, "conclusions and methodology are not entirely distinct from one another." General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Although experts "commonly extrapolate from existing data . . . nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Id. Rather, the trial court is free to `conclude that there is simply too great an analytical gap between the data and the opinion proffered.' Id.

Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir. 2010); see also, e.g., McDowell, 392 F.3d at 1301-02 ("[A]n expert opinion is inadmissible when the only connection between the conclusion and the existing data is the expert's own assertions. . . ."). If an expert's facially relevant conclusion relates to the data it purports to rely upon only by his own ipse dixit, it ultimately is simply an argument, "offer[ing] nothing more than what lawyers for the parties can argue in closing arguments" and, consequently, fails to meet Rule 702's helpfulness requirement. Frazier, 387 F.3d at 1262.

As plaintiffs note in their response to the motion to exclude Dr. Borjas's testimony,

his opinions about causation and damages depend on [a] three part scenario:

1. There was an immigration induced increase in the number of potential workers in the local area servicing the Russellville plant.

2. There was a decline in the real wage of hourly workers employed at the Russellville plant; and

3. There was an increase in the number of persons (or, more precisely, person-hours) employed at the Russellville plant.

Dr. Borjas's analysis, however, does not establish the third element. Indeed, in his report, Dr. Borjas explicitly admits that "the data provided to me indicate a decline in employment at the Russellville plant during the at-issue period — which would seem to contradict" his theory. Only by concluding that the information he was provided on employment levels was false and (admittedly erroneously) that no automation occurred, and then substituting the facility's output level as a proxy for its employment level, is Dr. Borjas able to draw any conclusion in his report whatsoever. In his deposition testimony, he forthrightly admitted as much while examining the analysis of his work in this case done by defendants' expert, and Dr. Borjas's former colleague, Dr. Finis Welch: Q. . . . My question for you is . . . where it says ["T]he report provide[s] no evidence that the alleged employment of illegal immigrants by defendants caused wages at Pilgrim's to decline and it does not quantify damages to Plaintiffs,["] is that accurate? A. That's accurate. When I ran the regression model that I needed to run and given that I had no regression model to run, I couldn't go to the next step — . . . Q. ["]His methodology does not include any procedures to examine whether employment of any individuals that might have been illegal immigrants actually caused wages at Pilgrim's to be lower [than] had no illegal immigrants been employed;["] is that accurate? . . . That sentence is accurate? A. Correct. Nonetheless, plaintiffs contend that Dr. Borjas has provided a viable opinion. They point to paragraphs 45 and 46 of his report in support of that claim. Paragraph 45 opines that "the preliminary evidence indicates that unauthorized alien worker-induced supply shifts in Russellville did indeed lead to lower wages for workers employed at the Russellville plant." Paragraph 46 merely indicates that Dr. Borjas "anticipate[s] being able to" complete his analysis "following additional discovery that addresses the above mentioned shortcomings in the data."

Borjas Report, ¶ 28; Borjas Report, Ex. 3. Defendants' interrogatory responses indicate a decline in workers at the facility from 1667 in 2003, to 1344 in 2008. Borjas Report, ¶ 28; doc. no. 110, Ex. 5 (Defendants' Responses to Plaintiffs' Second Set of Interrogatories), at 3.

Id. ¶ 28, 45; see also Daubert Hearing Transcript, at 162.

Doc. no. 109 (Response to Motion to Exclude the Testimony of George Borjas), at 21-24; doc. no. 111 (Response to Motion for Summary Judgment), at 49, 51-52 ("Prof. Borjas concluded that the Defendants' hiring of illegal aliens caused Plaintiffs' wages to be depressed at the Plant.").

Borjas Report, ¶ 45.

Id. ¶ 46. Even these documents purportedly indicating higher levels of employment do not suggest any increase in employment, since they only state supposed numbers of employees at one point in time.

Dr. Borjas's preliminary conclusion regarding wage depression is plainly ipse dixit. In the same paragraph he admits that "it has not yet been possible to estimate the statistical model summarized" in the report. As detailed above, the only data he has regarding one of the three central premises of his theory — that employment levels at the plant increased — flatly contradict his hypothesis. Hence, any conclusion that the hypothesis holds true could only derive from an analytical leap that disregards either the data in front of him, or the conditions antecedent he sets forth. Indeed, the sentence that follows the "opinion" to which plaintiffs point shows that Dr. Borjas was only able to reach even this preliminary conclusion by substituting product output for employment level. Professor Borjas admits that he has no reason to believe that substitution makes sense: A. If you take the data provided in the interrogatories as the true data, the correlation works the wrong way, definitely. If you take the output level in the Gold Kist plant as the true level of — proportional to employment, the correlation works the right way. Q. Okay. Do you know which one is accurate? A: I do not know. " Daubert requires that trial courts act as `gatekeepers' to ensure that speculative, unreliable expert testimony does not reach the jury. The trial court must `make certain that an expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999)). Dr. Borjas admitted that, absent inputs he was unable to consider, his analysis "would not be something that one would present." Further, his expertise is econometrics and applied microeconomics. His analysis was to include an econometric regression to allow him to calculate the degree to which plaintiffs' wages were depressed by Pilgrim's Pride's alleged hiring of illegal immigrants. That regression analysis, however, was never conducted. Bluntly, Dr. Borjas did not bring his expertise to bear on the relevant factual issues.

Id. ¶ 24.

Id. ¶ 45.

Id. at 104.

Borjas Report, ¶ 1.

Id. ¶ 2.

Shorn of its purely speculative conclusion, Dr. Borjas's report contains no relevant opinions at all. Rather, it is merely a recitation of a methodology and facts to which that methodology purportedly could be applied. "[I]n acting as a gatekeeper, the court is responsible for `keep[ing] unreliable and irrelevant information from the jury,' because of its `inability to assist in factual determinations, its potential to create confusion, and its lack of probative value.'" Bowers v. Norfolk Southern Corp., 537 F. Supp. 2d 1343, 1349-52 (M.D. Ga. 2007) (quoting Allison v. McGhan Medical Corp., 184 F.3d 1300, 1311-12 (11th Cir. 1999)). In its present form, Dr. Borjas analysis fails on all three counts.

Rather than addressing the obvious shortcomings of the report, or providing any cogent argument as to why they should not result in the exclusion of Dr. Borjas's testimony from consideration in light of defendants' pending motion for summary judgment, plaintiffs tilt at windmills. Specifically, they first contend that the law does not require them to prove any amount of damages as part of their prima facie case, provided they have shown "the fact of damage." While this statement of the law is highly questionable, see Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 466 (2006) (stating that it is "plaintiff's responsibility to prove that the amount of damages he seeks is fairly attributable to the defendant"), this court need not determine whether it is correct, because Dr. Borjas admitted he had not even established that much. When asked whether he had been "able to form an opinion as to whether wages . . . were decreasing or increasing or staying the same with the influx of immigrants into the Russellville facility," Dr. Borjas candidly admitted he "was unable to distinguish among these various possibilities." He testified that he "ended the report . . . basically by saying, if the output data was actually a correct measurement of employment, in other words proportional to employment, and I had no information on capital investment one way or the other . . . and counsel said there was nothing to indicate they had," then he could conclude causation. However, "[t]hat is a big assumption" that "could be wrong," and, plaintiffs are ultimately forced to admit, albeit circuitously, that it is.

Doc. no. 111 (Response to Motion for Summary Judgment), at 50-51

Borjas Deposition, at 117.

Id. at 118-19; see also id. at 110-12

Id. at 119; see also Daubert Hearing Transcript, at 162 ("Since then, new evidence has come up . . . and, in fact, tech — labor-saving technology was introduced into the firm.").

See doc. no. 111 (Response to Motion for Summary Judgment), at 51 n. 40 ("The preliminary evidence indicates that the Plant did undergo automation, which would explain the decrease in the number of workers. . . ."); doc. no. 111, Ex. B (Plaintiffs' Third Rule 56(f) Affidavit), ¶ 5 (admitting "automation . . . occurred at the Russellville Plant which significantly decreased the need for hourly workers").

Moreover, the preliminary conclusion itself only indicates that "unauthorized worker-induced supply shifts in Russellville did indeed lead to lower wages . . . at the Russellville plant." That opinion does not relate at all to any unauthorized workers hired by defendants, much less any such hiring that would constitute a RICO predicate act. It refers only to a possible wage impact of an influx of immigrants into the area. Such a diminution, even if the speculation it occurred is credited, would not be "damages" to "business or property," since it would be wholly unrelated to "`schemes prohibited by the RICO predicate statutes'" linked to the "relationship . . . between plaintiff workers and their employer. . . ." Williams v. Mohawk, 465 F.3d 1277, 1286-87 (11th Cir. 2006) (quoting Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1168 n. 4 (9th Cir. 2002)). Rather, the opinion refers only to the generalized wage-depressive effect, at least in narrowly defined skill groups, within an aggregated labor market that labor-supply shocks may have, which has been the focus of much of Dr. Borja's work. E.g., George J. Borjas, The Labor Demand Curve Is Downward Sloping: Reexamining the Impact of Immigration on the Labor Market, 118 Q.J. Econ. 1335, 1335-40, 1369-70 (2003); Abdurrahman Aydemir George J. Borjas, Cross-Country Variation in the Impact of International Migration, 5 J. Eur. Econ. Ass'n. 663, 663-666 (2007) (finding, in a study defining the relevant aggregated labor market as three countries, a "numerically sizable and statistically significant inverse relation between labor supply shifts and wages in all three countries").

Borjas Report, ¶ 45 (emphasis supplied).

Second, plaintiffs make a half-hearted attempt to describe this court's ruling on defendants' "Preliminary Motion" to strike Dr. Borjas's report and for summary judgment as "the law of the case." Plaintiffs are mistaken; law-of-the-case doctrine is manifestly inapplicable. See Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007) (denial of summary judgment is an interlocutory, not final, order); Gregg v. United States Industries, Inc., 715 F.2d 1522, 1528 (11th Cir. 1983) ("Ordinarily law of the case applies only where there has been a final judgment and not to interlocutory rulings."); see; see also Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 12 n. 14 (1983) ("[E]very order short of a final decree is subject to reopening at the discretion of the district judge.") (1983); Messinger v. Anderson, 225 U.S. 436, 444 (1912) (Holmes, J.) ("`[L]aw of the case,' as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power."); Curran v. Kwon, 153 F.3d 481, 486-88 n. 11 (7th Cir. 1998) ("[T]he denial of summary judgment . . . was not the law of the case and did not bind the court. . . .").

Daubert Hearing Transcript, at 274 ("I regard that issue there, the incompleteness of Professor Borjas's report as being decided[,] that's the law of the case. The court already ruled on their argument that it needed to be complete."); doc. no. 109 (Response to Motion to Exclude the Testimony of George Borjas), at 4 n. 9 ("The Court has already denied Defendants' `Preliminary Motion for Summary Judgment' predicated upon the alleged incompleteness of Prof. Borjas' Report.").

As noted above, defendants' motion was expressly denominated "preliminary" in nature; it was filed more than three weeks prior to both Dr. Borjas's deposition and the close of discovery; and, most importantly, the motion was summarily denied in a three-sentence order. It should have been blatantly obvious to even the most novice litigator that this order was not intended to foreclose similar arguments when ripely made without wasting judicial resources to hand-hold counsel through the reasoning. Moreover, even if the doctrine were applicable — and it is not — the significant further factual development that occurred after the ruling on defendants' "preliminary" motion would clearly justify reconsideration. See, e.g., 18B Wright, Miller, Cooper, Federal Practice and Procedure § 4478.1, at 695 ("A ruling made early in the proceedings may rest on poorly developed facts that have been better developed by continuing proceedings. In these circumstances, the forward progress of the case encourages reconsideration.").

Doc. no. 87, at 1.

Doc. no. 85, at 2 (setting August 29, 2008 as the deadline for completion of discovery).

Doc. no. 93.

Accordingly, Dr. Borjas's report provides no viable opinion regarding facts in issue. As such, plaintiffs have failed to carry their burden of demonstrating that his testimony would prove "helpful," and his testimony is, accordingly, due to be excluded and his report stricken.

2. Even were the conclusions supported, Dr. Borjas methodology is insufficiently reliable as applied to the facts of this case.

The parties do not dispute that Dr. Borjas is eminently qualified. His work on the subject of the impacts of immigration on native workers has had a profound impact on the field of study. Yet, "at all times, the district court must still determine the reliability of the opinion, not merely the qualifications of the expert who offers it." Kilpatrick, 613 F.3d at 1336. "The burden of establishing . . . reliability . . . rests on the proponent of the expert opinion": in this case, plaintiffs. Frazier, 387 F.3d at 1260; see also Allison, 184 F.3d at 1306 (the "burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert"). Three portions of the analysis Dr. Borjas proposes are deeply problematic and, at least together, render his opinion unreliable. Accordingly, because plaintiffs have failed to satisfy their burden to prove reliability, even had Dr. Borjas completed the analysis he describes in his report, his testimony would still be due to be excluded.

a. Dr. Borjas's instrumental variable proxy is unreliable

As outlined above, one of the three central conditions that should be true in order for Dr. Borjas's theory to produce a plausible conclusion that plaintiffs' wages were depressed by defendants' illegal hiring is that there be an "immigration-induced increase in the number of potential workers in the local area servicing the Russellville plant. . . ." Dr. Borjas uses "the proxy given by the number of Hispanic students enrolled in the Russellville School District, available from the National Center of Education Statistics," to proxy such an increase. With Hispanic school enrollment as the instrumental variable or "supply shifter" (the crucial moving part in his analysis), Dr. Borjas's theory posits that "[a]n increase in Hispanic enrollment should indicate an increase in immigration — and should lead to lower wages and greater employment at the Russellville plant." His methodology examines the correlation between increases in labor supply and decreases in wages to determine how much (and in what direction) wages change for each increment of increase in labor supply. Once the responsiveness of wages (wage elasticity) is determined, then Dr. Borjas posits that he can simply take the number of workers illegally employed at the plant, and tally the total damages attributable to those illegal hires based upon that responsiveness. Hence, for example, if wages fell by a dollar for every hundred new workers in an area, then every individual hire that constituted a RICO predicate violation would result in a penny of damages.

Doc. no. 111 (Response to Motion for Summary Judgment), at 9; see also Borjas Report, ¶ 45 (stating, as a predicate for determining causation and damages, that there must be an "unauthorized alien worker-induced supply shift[] in Russellville").

Borjas Report, ¶ 29; Daubert Hearing Transcript, at 154 ("I am going to try to use to the extent I can, the increase in Hispanic enrollment as a sort of . . . proxy that since I don't have the direct measure of immigration, I am going to use the Hispanic enrollment. So that the proxy that would allow me to approximate how much immigration was increasing by over the period.").

Daubert Hearing Transcript, at 150.

Borjas Report, ¶ 36. Contrary to defendants' vehement protests, Dr. Borjas persuasively explained that it is irrelevant whether the students are children of documented or undocumented workers. Borjas Deposition, at 375.

Borjas Report, ¶ 36; Daubert Hearing Transcript, at 148-51.

See Borjas Deposition, at 399-400.

Dr. Borjas admits that use of ethnic-breakdown school enrollment data in a study of this variety would be entirely novel. In support of this particular use in conjunction with wage elasticity analysis, both Dr. Borjas and plaintiffs argue only that the use of school data is used in economic analysis to proxy for "all kinds of other variables" and, therefore, it cannot undercut the reliability of the analysis. Such a general proposition, however, falls far short of demonstrating its reliability in the present context. See Elcock v. Kmart Corp., 233 F.3d 734, 748 (3d Cir. 2000) (rejecting the "novel synthesis of . . . two methodologies," even where "[e]ach approach, taken in isolation, may very well contain sufficient analytical rigor to be deemed reliable," because it would permit the expert simply to "offer a subjective judgment . . . in the guise of a reliable expert opinion"); see also Rider v. Sandoz Pharmaceuticals Corp., 295 F.3d 1194, 1202 (11th Cir. 2002) ("[T]he courtroom is not the place for scientific guesswork, even of the most inspired sort. Law lags science; it does not lead it.") (quoting Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996)).

Id. at 248.

Doc. no. 109 (Response to Motion to Exclude the Testimony of George Borjas), at 10-11; Borjas Deposition, at 247.

Dr. Borjas candidly admitted he had not done any test to determine whether the use of Hispanic student enrollment proxy as the instrumental variable for a labor-supply shift is valid, and that, if it is not, "[t]he whole method would fail." This is so because, as his report notes, "[i]n a regression analysis of this type it is crucial to use a valid instrument to identify the wage elasticity." Yet Dr. Borjas readily conceded that he does not know whether those two statistics — the number of workers who are new to the area and the number of children of Hispanic origin — are in any way correlated. The method he proposes to test the supposition that they are is wholly circular. He posits that if the number of workers employed at Pilgrim's Pride and the number of Hispanic students enrolled are positively correlated, i.e. both rise simultaneously, and the wage level at Pilgrim's Pride and the number of Hispanic students enrolled are negatively correlated, i.e. wages decrease while the number of students increases, then his variable would be valid. In other words, his novel use of enrollment data as a proxy variable is valid if the equation into which it is input confirms the other two central limbs of his hypothesis — that is, the variable will be valid only if it proves plaintiffs' theory of damages. However, certainly it is highly plausible that the wages and employment level at a single local firm could change simultaneously with the ethnic makeup of an area school system without any causal sinew linking those movements. Dr. Borjas fails entirely to explain how any correlation between Hispanic school children enrolled in one of several area schools — children who may or may not be children in a large family, children of low-skill workers, or even children of workers at Pilgrim's Pride — and the employment level and wage at Pilgrim's Pride would necessarily indicate a causal relationship between local labor-supply shifts and the wages of low-skilled workers, rather than a multitude of other factors that could also influence wages (such as changes in economic climate, demand for labor, changes in the local hiring environment, or strategic corporate decisions). Dr. Borjas admitted that he would need "to hold everything else constant, and [ensure] there is nothing else that is creating a correlation between Hispanic's [ sic] enrollment in the schools and the wages in the Russellville plant," but his report only purports to describe the correlation, without controlling for any of these other factors, and dub that correlation causal. Cf. Abdurrahman Aydemir George J. Borjas, Attenuation Bias in Measuring the Wage Impact of Immigration 1-5, 42-44 (Nat'l Bureau of Econ. Research, Working Paper No. 16229, July 2010) ("Measurement error, therefore, has been an important — and previously ignored — contaminant of the empirical results reported in this literature."). This is particularly problematic when the statistics show that the absolute number of students enrolled changed by only three students over the period, making the correlation of that data to a "supply shock" highly ambiguous at best.

Borjas Deposition, at 288-91, 303; see also Daubert Hearing Transcript, at 171-72 ("[THE COURT]. How do you discount that?. . . . [DR. BORJAS]. The assumption has to be a proportional relationship between — I mean, it's really the technical assumption and the proportional relationship between the number of Hispanic immigrants coming and the number of Hispanic children ending up in schools.").

Borjas Report, ¶ 38.

Borjas Deposition, at 287-90 (when asked if he tested whether it was possible that "the same group of people stayed in Russellville, yet the entire enrollment went up because of population increase from the same families that were there," Dr. Borjas admitted that he "did not" and does not "have any data" about it whatsoevever; rather, he simply relied upon a handful of news reports indicating that Hispanic immigrants were entering the area).

Id. at 287-308 (discussing multiple factors that might cause the numbers to move independently or cause a false positive correlation and admitting he "didn't do" tests to see whether it was even possible to separate out the labor-supply effects from those created by other factors).

Dr. Borjas's analysis critically depends on the assumption that any increase in labor supply must stem from workers who are perfect (or very near perfect) substitutes in terms of education and experience for the workers whose wages they purportedly affect. See Borjas, The Labor Demand Curve Is Downward Sloping, supra, at 1254-69 (explaining how groups should be sorted among education and experience to determine "closer substitutability"); George J. Borjas, Jeffrey Grogger, Gordon H. Hanson, Imperfect Substitution Between Immigrants and Natives: A Reappraisal 1-5 (Nat'l Bureau Econ. Research Working Paper No. 13887, March 2008) ("The elasticity of substitution between comparably skilled immigrants and natives is a critical parameter for assessing the wage effects of immigration.").

Borjas Deposition, at 304; see also Daubert Hearing Transcript, at 172.

See Borjas Report, Ex. 4A. The enrollment in the Russellville School District was 2411 students in 1999 and 2414 students in 2006. Id. It is also curious that Dr. Borjas failed to note, or take account of the fact, that Hispanic enrollment in the surrounding Franklin County school district increased by a significantly smaller percentage. See Borjas Report, Ex. 4B. Notwithstanding his apparent assumptions to the contrary, Dr. Borjas explains away the relatively steady absolute population by speculating that "[t]here are private schools that families might be sending their kids to as the Hispanic enrollment increased. Maybe the total kids in that age group might be going pretty rapidly, but it doesn't show up not [ sic] public school data." Borjas Deposition, at 295.

Given the independent factors that might influence the ethnic makeup of a school district and wages/employment levels at Pilgrim's Pride, any interrelationship between trends in those statistics is highly likely to be spurious and yet, provided they confirm plaintiffs' damages theory, Dr. Borjas, a Harvard economist, would tell a jury that they are causally related. "[E]xpert testimony may be assigned talismanic significance in the eyes of lay jurors, and, therefore, the . . . court[] must take care to weigh the value of such evidence against its potential to mislead or confuse." Frazier, 387 F.3d at 1263. Especially in light of the political and racial implications of a case of this variety, this court is not prepared to admit as reliable this novel use of Hispanic student enrollment as a proxy for an influx of immigration.

b. Dr. Borjas's market power analysis is unreliable

In yet another novel adaptation of his wage depression analysis, Dr. Borjas attempts to separate out the generalized wage-depressive effect of an immigration-induced labor-supply shock, which would "depress the wages for competing workers in all firms," by seeking to establish that Pilgrim's Pride "has some discretion over the wage it pays its workers." Dr. Borjas admits that, without proof that Pilgrim's Pride possesses a species of market power that permits it to pay less than the going wage in the area, "trends in the Russellville plant's wages would simply reflect the market pressures resulting from the additional number of workers in the entire labor market, and would not provide any information about how the Russellville plant's wages respond to a shift in Pilgrim's Pride's own polices towards employment of undocumented workers." In other words, to provide any evidence of wage depression causally related to any actions at all taken by defendants, he must determine that there exists "some kind of monopsonistic market power on the part of Pilgrim's Pride."

Borjas Report, ¶ 17-21.

Id. ¶ 17.

Daubert Hearing Transcript, at 160.

To make this central determination, however, Dr. Borjas simply compared the starting wages of workers at Pilgrim's Pride against four other firms in the area and determined that Pilgrim's Pride paid a lower wage. He admits that "all [he] can gather from this information" is that Pilgrim's Pride "pays less than these four employers in Franklin County." Nevertheless, he opines that, "[t]he available data, though limited . . . seem[] consistent with the hypothesis that Pilgrim's Pride has some degree of wage discretion."

Borjas Report, ¶ 19-20. For one of the four years he examined, Dr. Borjas was only able to obtain sufficient information for three comparator firms. See id., Ex. 2b; Borjas Deposition, at 202-03. These firms were those who responded to subpoenas sent based upon a list of the supposed "Top 10 Employers in Franklin County" from a now-defunct webpage, whose accuracy is, at best, questionable. See doc. no. 105, Ex. H; Borjas Deposition, at 200-01; Borjas Report, at 7 n. 14; see also supra note 133.

Borjas Deposition, at 204-05.

Borjas Report, ¶ 20; see also Daubert Hearing Transcript, at 247-55 ("Q. So from looking at four other firms you concluded that Pilgrim's Pride had some kind of market power because it paid less than the four other firms? A. I concluded the evidence was consistent with the fact that it was some kind of discretion, yes. Q. But you don't know how much discretion that is? A. I do not know that. Q. How would you figure that out? A. I did not do the analysis.").

Yet, in his deposition, Dr. Borjas testified that there are a "whole bunch of factors" that might influence wage differences, but concedes he does not have the data to exclude those other factors. Indeed, even though the report itself states that one employer's "relatively higher wages" (which were, on average, $1.88 per hour higher than the mean of the five sets of wages he examined) were part of a deliberate policy by that employer to "attract a particular kind of worker," Dr. Borjas included this wage in his data tabulation apparently without accounting for this "potential limitation" at all. Q. Are you aware of any studies, peer reviewed studies, in which a comparison is made with only one, two, or four other firms in which there is a conclusion made that the entity that is paying less is in fact . . . not a price taker or has discretion? A. I am not aware, because I don't really know the literature up to date in that. I don't know. That is the answer. Q. I think you told us earlier about some of the factors that went into whether or not an entity is a non[-]price taker or one that has discretion over wages, right? A. Theoretically. Q. All right. You did none of that analysis? A. No. This is patently insufficient to reliably indicate market power over wages and "fails to meet the criteria of professional soundness and validity that are at the core of Daubert's reliability requirement." Bailey v. Allgas, Inc., 146 F. Supp. 2d 1222, 1236 (N.D. Ala. 2000) (excluding economic expert's market power analysis because he failed to provide any sound economic basis for his definition of the relevant market, failed to rely upon data sufficient to support his opinion, and failed to define the market share controlled by the defendant), aff'd, 284 F.3d 1237 (11th Cir. 2002). Dr. Borjas's own academic writing has emphasized the existence of inter-industry wage differentials within the manufacturing sector, and posits multiple reasons why these differentials exist. See George J. Borjas, Labor Economics, supra, at 478-80. Dr. Borjas admits he did not control for these. An expert's failure to address alternative explanations for the opinions he asserts in the ways standard in his field of expertise "violates a primary purpose of Daubert: to ensure the expert `employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" Guinn v. AstraZeneca Pharmaceuticals LP, 602 F.3d 1245, 1255 (11th Cir. 2010) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

See, e.g., Borjas Deposition, at 160-75, 179-81, 207-12, 281-86; 384-93.

The court arrived at this figure independently by averaging the real hourly starting wage figures in Borjas Report, Ex. 2B, taking the difference between that average and the wage of Tiffin Motor Homes, the company from whom Dr. Borjas received that information, and averaging those differences.

Borjas Report, ¶ 21.

Borjas Deposition at 364-65.

Further, figures compiled by the United States Department of Labor's National Bureau of Labor Statistics indicate that the average weekly income of a worker in a poultry processing facility is less than half that of the average worker in the manufacturing sector as a whole. The four comparator firms Dr. Borjas used to conclude Pilgrim's Pride had wage discretion were three manufacturing firms and a construction firm. Dr. Borjas is undoubtedly correct that the national statistics are unadjusted for regional differences. Yet he fails entirely to explain why he did not even attempt to account at all for industry-wide competitive pressures or the wage differentials that "are probably" present. Further, among the only two studies of the firm-specific wage impacts of immigration (neither of which are peer-reviewed and both of which used much, much larger data sets), the most recent indicates that inter-industry differences in labor supply elasticity can vastly change, and even eliminate, any wage differentials attributable to employment of undocumented workers. Julie L. Hotckhiss Myriam Quispe-Agnoli, Employer Monopsony Power in the Labor Market for Undocumented Workers 27-28 (Fed. Reserve Bank of Atl., Working Paper No. 2009-14c, Dec. 2009). Dr. Borjas's opinion that Pilgrim's Pride exercised monopsonistic market power over wages is all the more suspect in view of the fact that, by his own figures, the wage trends at Pilgrim's Pride mirror almost precisely the wage trends averaged across the four firms he examined — with Pilgrim's Pride's hourly wages increasing, on average, 3.2% annually, and wages at the four firms he examined increasing only, on average, 3.3% annually.

See Borjas Deposition, Ex. 3 (printouts from the Bureau of Labor Statistics website); see also Borjas Deposition, at 180-85.

E.g., id. at 188-89.

Id. at 187.

See id. at 189; Daubert Hearing Transcript, at 241-44.

It is also notable that this study found that "newly arriving undocumented workers appear to have no impact on displacing documented workers," at least at the firm level. Hotchkiss Quispe-Agnoli, Employer Monopsony, supra, at 25. The study also found ambiguous the causal link between employing undocumented workers and paying lower wages, since "this could reflect the ability of documented workers to chase the higher-paying jobs at firms not hiring undocumented workers." The other study, Nikolaj Malchow-Möller, et al., Do Immigrants Affect Firm-Specific Wages 23 (Copenhagen Bus. Sch. Working Paper 7-2008, 2008), explicitly cited Dr. Borjas's 2003 study in suggesting that the causal mechanism for the wage effects of immigrant-hiring at the firm level were different from what he identified. There are two other Federal Reserve Bank of Atlanta Working Papers by the same authors that also examine different aspects of the effects of firms employing undocumented workers, though these do not directly address firm-specific wage effects.

See Borjas Deposition, at 360-61.

On several occasions, the Eleventh Circuit addressed the thorough analysis required of experts who seek to demonstrate that an entity possesses market power sufficient to permit it to control the prices of its products independent of market forces. See, e.g., Gulfstream Park Racing Ass'n, Inc. v. Tampa Bay Downs, Inc., 479 F.3d 1310, 1313 (11th Cir. 2007) (upholding rejection of "expert testimony" opining that an entity had market power that "was conclusory, based upon insufficient economic analysis, and incomplete in its definition of the relevant market"); Bailey, 284 F.3d at 1247-56 (requiring, among other things, careful definition of the "geographic market" or the "area of effective competition . . . in which the [entity] operates"; determination of "percentage share of that market"; and a demonstration of independent ability to sustain "supracompetitive prices"); Levine v. Central Florida Medical Affiliates, Inc., 72 F.3d 1538, 1553 (11th Cir. 1996) (rejecting expert testimony purporting to demonstrate market power where, as here, the expert failed to account for the ability of individuals to change their affiliation with the relevant entity). Plaintiffs' argument fails entirely to convince the court that Dr. Borjas's "market power" assertion should not be subject to a similarly careful analysis of its reliability.

See doc. no. 109 (Response to Motion to Exclude the Testimony of George Borjas), at 16-21.

c. Dr. Borjas fails to adequately account for possible alternative causes

Contrary to plaintiffs' assertion, Dr. Borjas's theory regarding the wage-impacts of immigration on native workers, and the results he has derived from its application, even when examining a national labor market, are not "universally accepted," as Dr. Borjas's own academic work itself recognizes, and, as even a cursory review of the academic literature can attest. E.g., Aydemir Borjas, Attenuation Bias in Measuring the Wage Impact of Immigration, supra, at 3 ("A number of papers have replicated the national-level approach, with mixed results."); Gianmarco I. P. Ottaviano Giovanni Peri, Rethinking the Effects of Immigration on Wages 1-5 (Nat'l Bureau of Econ. Research, Working Paper No. 12497, Aug. 2006) (finding revision of Dr. Borjas's methodology necessary, and producing significantly different results, because, in its present form, the approach only describes the "partial" effect of immigration on wages (since it omits all cross-interactions with other types of workers and flows of labor and capital) and, as such, is "uninformative on the overall effect of immigrants on wages"); David Card, Is the New Immigration Really So Bad? passim (Nat'l Bureau of Econ. Research, Working Paper No. 12497, Aug. 2005) (contending the influence of numerous factors, including immigrant assimilation, capital and labor flows, changes in demand for low-skill labor, and imperfect substitutability, make it "hard to argue that the evidence [from analysis using Dr. Borjas's methodology] points to a negative impact of immigration unless one starts from that position a priori"). The methodology is entirely without precedent at the level of a single firm in a small rural town.

Indeed, Dr. Borjas has, for more than a decade, been among the most stalwart critics of studies of the impacts of immigration on native wages done at geographic levels smaller than whole nations. He has stated that, because studies done even at the regional level fail to take into account the responsive flows of both capital and labor, as well as immigrants' self-selection of certain areas and certain industries, they are "completely uninformative" and "do not measure the impact of immigration on the native labor market." George Borjas, Heaven's Door 73-82 (1997). Indeed, the very work upon which he draws as the basis for his methodology in this case suggests that even immigrant self-selection alone can lead to "spurious . . . correlation[s] between immigration and wages." Borjas, The Labor Demand Curve Is Downward Sloping, supra, at 1338. Given the easy mobility of both capital and workers between geographic areas within the United States, he writes in that paper that, because of various "factor flows," "in the end, immigration affect[s] every city, not just the ones actually receiving immigrants." Id. "[T]he local labor market can adjust in far too many ways to provide a reasonable analogue to the `closed market' economy that underlies the textbook supply-and-demand framework." Id. at 1339. "Because local labor markets adjust to immigration . . . the labor market impact of immigration may be measurable only at the national level." George J. Borjas, The Impact of Immigration on the Labor Market 7 (Conf. on Labor Capital Flows in Eur., Jan. 2006); George J. Borjas, Increasing the Supply of Labor Through Immigration: Measuring the Impact on Native-born Workers 2 (Ctr. for Immigration Studies May 2004) (same); see also Silvia Helena Barcellos, The Dynamics of Immigration and Wages 3 (Rand Labor Pop. Working Paper No. WR-755, Mar. 2010) ("Borjas (2003) argues that given internal migration, the correct way to define the labor market is in terms of the nation as a whole.").

Borjas Report, ¶¶ 8-9 ("The econometric framework used in my 2003 article, which estimates the responsiveness of wages to immigration-induced supply shifts in a national labor market defined along the dimension of skills, can be adapted to estimate the analogous effect in the present context.").

Available at http://www.jvi.org/fileadmin/jvi_files/Warsaw_Conference/Papers_and_Presentations/Borjas_paper.pdf.

The methodology Dr. Borjas has outlined for use in this case, however, purports to describe wage impacts at a much narrower level: a labor market defined as a single firm. He asserts that he "believe[s] the same basic methods and concepts used in the literature can be applied to estimate the impact of immigration at the firm level," but fails to explain why he has chosen to jettison the skepticism about multiple frustrating factors, even at much larger levels of aggregation, that has driven much of his academic work.

See Borjas Report, ¶ 16.

Id.

No less an authority on the function of economic theory in legal contexts than Judge Frank Easterbrook of the Seventh Circuit has opined about "the difficulty of establishing that unlawful hiring of aliens caused a diminution in . . . wages" in a case alleging the same theory as that asserted here:

RICO provides treble damages for direct injuries but not remote ones. . . . Although the Ninth Circuit concluded in Mendoza that the injury workers suffer when wages are depressed by competition from aliens is similar to the kind of injuries redressed under the antitrust laws, things may not be so straightforward. An increased supply of labor logically affects, not just the wages at [defendants' Russellville] plant, but wages throughout the region (if not the country). Workers can change employers (leaving [Pilgrim's Pride] for higher pay elsewhere), and this process should cause equilibration throughout the labor market. Yet plaintiffs' theory is not that too many aliens depress wages around [Russellville]; it is that [Pilgrim's Pride] pays lower wages than some competitors, and that effect would be very hard to attribute to particular violations of 8 U.S.C. § 1324(a)(3)(A).

Baker v. IBP, Inc., 357 F.3d 685, 692 (7th Cir. 2004), cert. denied, 543 U.S. 956.

The Supreme Court has admonished courts to be vigilant in application of RICO's requirement that plaintiffs prove damage "by reason of" the substantive RICO violations. "[U]nder civil RICO, the plaintiff is required to show that a RICO predicate offense `not only was a `but for' cause of his injury, but was the proximate cause as well.'" Hemi Group, LLC v. City of New York, ___ U.S. ___, 130 S. Ct. 983, 989 (2010) (quoting Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 268 (1992)). "[T]he focus is on the directness of the relationship between the conduct and the harm." Id. at 991. Plaintiffs must demonstrate "`a direct causal connection' between the predicate offense and the alleged harm." Id. (quoting Anza v. Ideal Steel Supply Corp, 547 U.S. 451, 460-61 (2006)). There must be "no independent factors that account for [the] injury. . . ." Bridge v. Phoneix Bond Indemnity Co., 553 U.S. 639, 658 (2008). Even if causing the "harm" asserted was the purpose of a criminal scheme, and acts in furtherance of that scheme have caused it, unless a designated "predicate act directly caused" that harm, then RICO's proximate causation requirement has not been met. Anza, 547 U.S. at 460 (stating that a party may not "circumvent the proximate-cause requirement simply by claiming that the defendant's aim was to" cause the harm alleged); Beck v. Prupis, 529 U.S. 494, 500-01 (2000) ("[I]njury caused by an overt act that is not an act of racketeering or otherwise wrongful under RICO," even if "in furtherance of a conspiracy," "is not sufficient to give rise to a cause of action under § 1964(c)").

There are multiple causal concerns with Dr. Borjas's proposed analysis that would make it both unpersuasive and highly confusing on this critical causal element. Plaintiffs' asserted injury is directly caused by the decision, at some level in the Pilgrim's Pride hierarchy, to set wages below what they hypothetically might otherwise have been. Initially, incremental wage-setting decisions in a nationwide corporation do not follow the smooth curve that Dr. Borjas's measurements require and may emerge from multiple levels of the corporate hierarchy, many of which may have no relationship whatsoever to defendants or their alleged co-conspirators. Further, any wage-setting decision would undoubtedly be influenced by a variety of factors, many of which Dr. Borjas has written about extensively in cataloguing the difficulty labor economists have faced in working out the wage impacts of immigration. E.g., Borjas, The Labor Demand Curve Is Downward Sloping, supra, at 1370 (suggesting, as a necessary avenue for further research, "documenting the many adjustments that take place, by workers and firms, both inside and outside the labor market, as immigration alters economic opportunities in many sectors of the economy"). Dr. Borjas's analysis does not even purport to directly examine those decisions or factors other than illegal hiring that may have influenced them, and to what degree. As detailed above, Pilgrim's Pride itself was sliding toward (and ultimately into) bankruptcy during the relevant time frame, a factor that very probably impacted the wages it paid over the period examined. Moreover, it is undisputed that there were significant capital improvements at the company, which Dr. Borjas has written affect demand for labor, necessarily altering the supply-and-demand curve his model relies upon. See Borjas, Labor Economics, supra, at 304-09. Further, he does not dispute that the nationwide average wage in the poultry industry on the whole failed to keep pace with inflation during the relevant years — meaning that the real wage in the entire industry nationwide fell (and, hence, that industry-wide competitive pressure pushed al poultry-processing firms, Pilgrim's Pride included, to maintain lower labor costs), a point Dr. Borjas dismisses only by saying that Pilgrim's Pride "might have kept [pace] even less." A court must ensure an "expert's opinion will have a reliable basis in the knowledge and experience of his discipline." Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1193 (11th Cir. 2010). Dr. Borjas's failure to account for the very frustrating causal factors he has identified in his academic work is far too problematic.

Borjas Deposition, at 377.

Moreover, provided someone had hired them, Dr. Borjas's general theory itself would posit that, because all unauthorized workers increase the labor supply, wages at Pilgrim's Pride should fall if immigrants had moved into the area, even if Pilgrim's Pride had never hired a single one. See Borjas, The Labor Demand Curve Is Downward Sloping, supra, at 1368-70. Thus, the same decline in plaintiffs' real wages would occur even if the defendants had not committed the required predicate act — a fact that entirely eviscerates the assumption that the hiring (much less hiring with the requisite knowledge) was the "but for" cause of plaintiffs' depressed wages.

Any or all of these factors (and probably several more) could easily explain a diminution in wages; yet, if Dr. Borjas were to complete his analysis as outlined in his report, he would control for none of them and would, instead, attribute the entire diminution in wage to increased labor supply and then multiply that coefficient by the number of immigrants allegedly hired in violation of the INA. It is, of course, decidedly possible that one factor in any diminution may have been a substantive RICO violation, but Dr. Borjas's analysis does not even purport to show, and plaintiffs have pointed this court to no other evidence indicating, what portion of the wage-setting decision is directly attributable to other decisions to hire or harbor unauthorized aliens. In short, the showing plaintiffs seek to make could only demonstrate a correlation between real wages at the Russellville plant and the ethnic makeup of the local school district — nothing more and nothing less. Any indication of the causal link that RICO requires is simply too attenuated. "A link that is `too remote,' `purely contingent,' or `indirec[t]' is insufficient." Hemi Group, LLC, ___ U.S. ___, 130 S. Ct. at 989 (quoting Holmes, 503 U.S. at 271, 274) (alterations in original). Certainly an expert is not required to "rule out all possible alternative causes" in order for his testimony regarding causation to be reliable. Guinn, 602 F.3d at 1253. However, particularly in light of the Supreme Court's pronouncements regarding RICO's causation element, an expert whose testimony is offered to establish that element "must provide a reasonable explanation as to why he . . . concluded that any alternative cause suggested . . . was not the sole cause of the plaintiff's injury." Id. at 1253 (quotation and alterations omitted). This is particularly so where the prospective witness's own academic work suggests those alternatives and has criticized others' work as "uninformative" for failing to properly account for them. The very "objective" of a court's performance of its role as gatekeeper under Rule 702 "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co., Ltd., 526 U.S. at 152.

The court holds that plaintiffs have failed to carry their burden of establishing that Dr. Borjas's analysis, as described in his report, could reliably evidence the propositions for which they offer it. To any extent Dr. Borjas's tailored-for-(this increasingly popular strain of) — litigation testimony would be probative on the question of whether defendants' predicate RICO violations were the direct, substantial, but-for cause of plaintiffs' injury, that slight value is far outweighed by the likelihood his testimony would confuse and mislead a jury. "[C]ourts must take care to weigh the value of such [expert] evidence against its potential to mislead or confuse." Frazier, 387 F.3d at 1263. The "specific issue" a court must assess is the "reasonableness of using [the proffered] approach, along with [the expert's] particular method of analyzing the data thereby obtained, to draw a conclusion regarding the particular matter to which the expert testimony was directly relevant." Kumho Tire Co. Ltd., 526 U.S. at 153-54 (emphasis in original). "`[ A] ny step that renders the analysis unreliable under the Daubert factors renders the expert's testimony inadmissible.'" McClain v. Metabolite International, Inc., 401 F.3d 1233, 1245 (11th Cir. 2005) (quoting Amorgianos v. National Railroad Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002)) (emphasis in original). Any of the above-identified flaws in the methodology Dr. Borjas proposes could, alone, render his analysis unreliable; together, they are fatal. Dr. Borjas's expert report is due to be stricken and, hence, his testimony excluded.

C. Defendants' Motion for Summary Judgment

Plaintiffs do not appear to contest that Dr. Borjas's report, and the proposed testimony it represents, is the only evidence before the court on the causation and damages elements of their cause of action. Because that report is due to be excluded, defendants' motion for summary judgment is due to be granted on the basis that plaintiffs have failed to present evidence of damages and causation.

See doc. no. 111 (Response to Motion for Summary Judgment), at 59 ("If the Court denies [defendants' Motion to Exclude the Testimony of George Borjas], then Plaintiffs have put forth sufficient evidence that the Hiring Violations caused them to be paid less than they would have been paid had the Defendants not hired vast numbers of illegal aliens."). Plaintiffs have pointed to no other evidence of causation and damages in their response to defendants' motion for summary judgment. "There is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment. Rather, the onus is upon the parties to formulate arguments; grounds . . . not relied upon in summary judgment are deemed abandoned." Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (citations omitted).

Plaintiffs' failure to causally link any wage depression that may have occurred to the RICO predicate acts, as § 1964(c) requires, is perhaps unsurprising, because plaintiffs have not provided sufficient evidence that the predicate offenses occurred at all. In their complaint, plaintiffs alleged violation of two provisions of 8 U.S.C. § 1324(a) as possible predicate acts for their RICO claim. First, they assert that defendants or their co-conspirators violated § 1324(a)(3)(A) (the "hiring" provision), which makes it illegal, "during any 12-month period, [to] knowingly hire[] for employment at least 10 individuals with actual knowledge that the individuals are aliens as described in [§ 1324(a)(3)(B)]." 8 U.S.C. § 1324(a)(3)(A). Section 1324(a)(3)(B), in turn, defines "alien" as (1) "an unauthorized alien" who is not either lawfully admitted for permanent residence or authorized to be employed, who (2) "has been brought into the United States in violation of [§ 1324(a)]." 8 U.S.C. § 1324(a)(3)(B). The Eleventh Circuit has helpfully parsed this multiply-recursive language into its constituent elements and clarified their relationship to one another. Edwards v. Prime, Inc., 602 F.3d 1276, 1292-93 (11th Cir. 2010). For an employer to violate the section, he must not only hire ten individuals in a calendar year with actual knowledge that they are unauthorized for employment in this country, but must also have actual "knowledge that the alien was brought into the country illegally." Id. at 1293.

This final element is critical, as the Eleventh Circuit noted in Edwards, because it demarcates the distinction between a crime under the INA that "would be a RICO predicate act" and one that "would not be a RICO predicate act." Id. "`If the employer does not know that at least 10 of its illegal hires were `brought into' the country by some third party (as opposed to walking across the border themselves, or arriving on a visitor's or student visa and outstaying their welcome), then it has not committed a RICO predicate act by hiring them. . . .'" Id. at 1293 (quoting Nichols v. Mahoney, 608 F. Supp. 2d 526, 534 (S.D.N.Y. 2009)). The emphasis placed upon this element is a central part of the congressional design of both the INA itself and its selective incorporation § 1961(F) of RICO in 1996. Id. This court drew a particularly sharp line under this requirement very early in this case, "hold[ing] that the proper construction" of this provision required proof that defendants hired "ten or more individuals . . . with actual knowledge that such individuals have entered the United States with some assistance or encouragement from another person."

Doc. no. 31 (Memorandum Opinion Denying Motion to Dismiss), at 35 (emphasis supplied).

Assuming, arguendo, that plaintiffs have adduced sufficient evidence, through their immigration expert Johnston, to create a genuine dispute about whether defendants hired aliens with actual knowledge that they were unauthorized, plaintiffs fail even to squarely argue defendants had actual knowledge those aliens were illegally brought into the United States. Indeed, tellingly, plaintiffs never even use the phrase "brought into" or any phrase with a similar meaning in the seven pages devoted to "actual knowledge" in their brief opposing summary judgment.

See doc. no. 106, Ex. A (Second Johnston Report), at 13 (opining, from a review of employee hiring documents, that 240 out of 1340 employees were not authorized to work in the United States).

Doc. no. 111 (Response to Motion for Summary Judgment), at 29-36.

Plaintiffs contend that "brought in" should be given a liberal interpretation to "include. . . . assistance of any kind, either prior to entry or after." In support of this proposition, plaintiffs cite several cases from other circuits to suggest that "brought" has a broad meaning. All of these cases are decidedly inapposite, as they each interpret a different provision that makes it illegal to "bring to the United States in any manner whatsoever" an alien who has not received prior authorization. United States v. Gasanova, 332 F.3d 297, 299-300 (5th Cir. 2003) (quoting 8 U.S.C. § 1324(a)(2)(B)); United States v. Yoshida, 303 F.3d 1145, 1151-53 (9th Cir. 2002); United States v. Aslam, 936 F.3d 751, 755 (2d Cir. 1991). The "in any manner whatsoever" language does not appear in § 1324(a)(3)(A). Yet it is precisely these courts' recitation of that language to which plaintiffs point in urging this court to read "brought into" in § 1324(a)(3)(A) as "assistance of any sort," including in obtaining false documentation. This court need not determine, however, whether these constructions of "bring[ing] to," extended as they are by that language, should be coextensive with "brought to," actual knowledge of which is required to violate § 1324(a)(3)(A). At most, the cases plaintiffs rely upon establish that facilitating the illegal entry of an alien can constitute "bringing to," even if the defendant only physically accompanied the aliens from the United States border to their immediate destination. Aslam, 936 F.3d at 755 (finding "meeting the aliens on the United States side of the Canadian border and being available to drive them to some interior point" sufficient to support a conviction under the "bringing to" prohibition); see also Yoshida, 303 F.3d at 1152 (finding it irrelevant that defendant "did not actually pilot the airplane to the United States" when the evidence established that "[s]he escorted the aliens onto the airplane that eventually landed in the United States"). They certainly do not hold that "assistance in obtaining stolen security numbers and other fake I.D.s in order to obtain employment at the plant," once an individual has established residence in the United States, would constitute "bringing in."

Id. at 37 (emphasis in original).

Id. at 37-38.

Id. at 37.

Id. at 38.

Plaintiffs simply provide no admissible evidence whatsoever that even remotely suggests that defendants or their co-conspirators had actual knowledge that any individual they hired was "smuggled (`brought') into the United States," much less the ten in a calendar year that the statute requires. Nichols, 608 F. Supp. 2d, at 543. "An employer may know that it hired illegal aliens without knowing how they made their way into the United States," which would not violate the hiring provision. Edwards, 602 F.3d at 1294. Plaintiffs contend it is simply "common knowledge" that unauthorized aliens must obtain some help in coming to this country "because they cannot cross alone." Were that sufficient, the "brought into" requirement would functionally be written out of the statute. Moreover, the Eleventh Circuit has noted multiple means by which aliens may come to this country without the variety of aid that the "brought into" element contemplates, including overstaying a student visa, walking across the border, or visiting as a tourist and remaining to work. Id. at 1294.

Doc. no. 111 (Response to Motion for Summary Judgment), at 38.

The closest plaintiffs come to providing even a scintilla of evidence directed to the "brought to" element is the declaration of a former Pilgrim's Pride employee, which avers that the declarant overheard alleged co-conspirator, Sheila Walters, tell another employee to tell a crowd of Hispanic workers who had staged a walk-out during a unionization campaign the following: "I know you have to get your papers right. I can send you back just like I brought you here." This supposed admission is abject hearsay. Plaintiffs assert, in a footnote elsewhere in their brief, that it should be admissible as a statement made by a co-conspirator made in furtherance of the conspiracy. See Fed.R.Evid. 802(d)(2)(E). Plaintiffs fail entirely to support this bald assertion with even a single line of argument, as expressly required under the co-conspirator exception to the hearsay exclusion. Id. ("The contents of the statement . . . are not alone sufficient to establish . . . the existence of the conspiracy and the participation therein. . . ."); see United States v. Underwood, 446 F.3d 1340, 1346 (11th Cir. 2006) (proponent must present evidence tending to show "(1) a conspiracy existed, (2) the conspiracy included the declarant and the defendant against whom the statement is offered, and (3) the statement was made during the course of and in furtherance of the conspiracy"). Further, given its terminal ambiguity, even if this statement were admissible, it would not create a genuine dispute as to whether ten individuals had been hired in a calendar year with actual knowledge they had been brought into the country in violation of § 1324, as the statute requires. Accordingly, plaintiffs' hiring violation claim fails as a matter of law.

Doc. no. 111, Ex. I, at 1-2.

Id.

Doc. no. 111 (Response to Motion for Summary Judgment), at 36 n. 28.

Plaintiffs' claim based upon § 1324(a)(1)(A)(iii) (the "harboring" provision) as a predicate similarly fails to pass muster. Concededly, there are dicta in Edwards, 602 F.3d 1276, suggesting that employment of an unauthorized alien may alone constitute "harboring" within the meaning of § 1324(a)(1)(A)(iii). Id. at 1298-99. That case indicates that "knowingly employing illegal aliens alone" may be enough, based upon Congress's deletion of a proviso from the version of § 1324(a) that existed prior to 1986 which stated that "employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring." Id. at 1299 (citing 8 U.S.C. § 1324(a) (1982)). Nonetheless, that portion of the opinion relies largely upon the reasoning of a Second Circuit decision, United States v. Kim, 193 F.3d 567, 573-74 (2d Cir. 1999), which held that both "conduct tending substantially to facilitate an alien's remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence" were necessary elements of a harboring violation. Id. at 574 (emphasis supplied); cf. Edwards, 602 F.3d at 1298-99 (citing Kim). While Kim clearly establishes that employers may be liable under the section and that employment itself may be integral to this analysis, Kim, 193 F.3d at 572-74, the Second Circuit's evidentiary observations regarding prevention of detection strongly indicate that knowing employment of an unauthorized immigrant, without more, would not be enough under the analysis they employed. Id. at 575 (discussing employer's "instruct[ions] to report falsely to INS" and to "obtain false documentation and to submit a [misleading] I-9" as "permit[ting] the inference that [defendant] attempted to prevent [unauthorized alien's] continued presence from being detected by authorities"); see also United States v. Khanani, 502 F.3d 1281, 1289 (11th Cir. 2008) (stating that mere knowing employment, absent some conduct indicating further inducement or encouragement, would not be enough).

The conclusion that § 1324(a)(1)(A)(iii) requires more than simple employment of an illegal immigrant is consistent with both the plain text and context of the provision. E.g., Wyeth v. Levine, ___ U.S. ___, 129 S. Ct. 1187, 1215 n. 6 (2009) (reiterating the usual "impropriety of looking beyond the plain text"); Connecticut National Bank v. Germain, 503 U.S. 249, 253-54 (1992) ("We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete." (internal citations and quotation marks omitted)); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1185 (11th Cir. 1997) ("In construing a statute we must begin, and often should end as well, with the language of the statute itself."). "In [this] circuit, `[w]hen the import of the words Congress has used is clear . . . we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language.'" Shotz v. City of Plantation, Florida, 344 F.3d 1161, 1167 (11th Cir. 2003) (quoting United States v. Weaver, 275 F.3d 1320, 1331 (11th Cir. 2001)).

Section 1324(a)(1)(A)(iii) makes it a crime to "knowing[ly] or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceal[], harbor[], or shield[] from detection . . . [an] alien in any place, including any building or any means of transportation. . . ." 8 U.S.C. § 1324(a)(1)(A)(iii) (emphasis supplied). Editions of Black's Law Dictionary that were roughly contemporaneous to Congress's revision of § 1324 into its current form defined "Harbor" as "to give shelter or refuge to," or "to receive clandestinely and conceal[]," and gives examples of "furnishing of shelter, lodging, or food clandestinely or with concealment. . . ." Black's Law Dictionary 847 (4th ed. 1951); see also Black's Law Dictionary 717 (6th ed. 1991) (same); Webster's Third New International Dictionary 1031 (1981) (defining "harbor" as "to give shelter or refuge to" and "to receive clandestinely and conceal"). The plain language reading of "harbor" to require provision of shelter or refuge, or the taking of active steps to prevent authorities from discovering that the employee is unauthorized or illegally remaining in the country, should control.

The court acknowledges that the Eighth Edition of Black's Law Dictionary (2004) specially defines "harboring of an illegal alien" as distinct from "harboring" in general to include "the act of providing concealment from detection by law-enforcement authorities or shelter, employment, or transportation to help a noncitizen remain in the United States unlawfully. . . ." Id. at 733. This definition, published eighteen years after § 1324 was drafted, is not controlling. Nor does it inherently contradict the construction adopted here. Employment of an alien alone, need not, and indeed often will not be "to help a noncitizen remain in the United States unlawfully," though there are obviously situations in which both conditions will be true. Id. (emphasis supplied).

This construction is bolstered by reading the provision in context with other revisions enacted alongside the current version of the harboring proscription. Section 1324(a)(3)(A), for example, provides a significantly lesser criminal penalty (a maximum of five years, as opposed to the maximum of ten years for violations of § 1324(a)(1)(A)(iii) for commercial benefit, under § 1324(a)(1)(B)(i)) for hiring an unauthorized alien when that hiring is done with actual knowledge that the alien was unauthorized as well as that he was brought illegally into the country, whereas § 1324(a)(1)(A)(iii) requires only reckless disregard of the illegal status of the alien. Absent clear and mandatory authority, this court will not impute such irrationality to Congress as to construe § 1324 to contain both a clearly applicable statutory provision with a lesser penalty and more stringent mens rea requirement and a statutory provision merely-implicitly-applicable to the same conduct with a greater penalty and more relaxed mens rea requirement. See Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 196-197 (1980) ( per curiam) ("Absent a far clearer expression of congressional intent, we are unwilling to read the Act as creating such a seemingly irrational. . . . system."). Further, the contemporaneously enacted provision 8 U.S.C. § 1324a(a)(1)(A) makes it "unlawful for a person or other entity . . . to hire . . . for employment in the United States an alien knowing the alien is an unauthorized alien," and provides for "criminal sanctions . . . [that] are much less stringent than those prescribed for a violation of § 1324." United States v. Zheng, 305 F.3d 1080, 1085 (11th Cir. 2002). While the Eleventh Circuit has counseled that the partial redundancy of these provisions should not be construed to limit the meaning of § 1324, it has regularly utilized the context of the entirety of the Immigration Reform and Control Act of 1986, Pub.L. NO. 99-603 (which revised fully § 1324 and created § 1324a), in construing the scope of the provisions contained therein. E.g., Zheng, 305 F.3d at 1086-87 ("Congress understood th[e] problem [of illegal employment and its harmful effects] and chose to penalize employers for hiring illegal aliens and harboring them from detection by providing transportation and housing for them.") (emphasis supplied); see also Edwards, 602 F.3d at 1293 (discussing the distinctions between § 1324a(a)(1)(A) and § 1324(a)(3)(A) and noting that the "added element [of actual knowledge] makes a difference when it comes to penalty.").

Even assuming "harbor" is ambiguous, utilizing the "traditional tools of statutory construction" reinforces a construction of "harbor" that requires something more than simple employment of an unauthorized worker in reckless disregard of that status. Shotz, 344 F.3d at 1167 ("If the statutory language is not entirely transparent, [courts should] employ traditional canons of construction before reverting to legislative history. . . ." (internal citations and quotation marks omitted) (alteration in original)). The canon of noscitur a sociis counsels in favor of an interpretation of "harbor" that is consistent with the other verbs with which it is in a series, namely "conceal[]" and "shield[] from detection." Graham County Soil and Water Conservation District v. U.S. ex rel. Wilson, ___ U.S. ___, 130 S. Ct. 1396, 1402 (2010) (stating that the nosictur "maxim, literally translated as `it is known by its associates,' counsels lawyers reading statutes that `a word may be known by the company it keeps'" (internal citations omitted)). Both "conceal" and "shield" indicate some deliberate, affirmative interference with discovery, a quality "harbor" can readily be construed to share when read as providing shelter, transportation, or other aid in avoiding detection (such as directing an alien where she might purchase false citizenship documents). Simple employment, however, even if done with knowledge of an alien's status as such, does not of itself share this connotation. Further, even were the word terminally ambiguous, because § 1324 is a penal statute, the rule of lenity would counsel strongly that it be construed in favor of defendants, a reading that comports wholly with the principle dictionary definition and would exclude mere employment. United States v. Santos, 553 U.S. 507, 514 (2008) ("The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.").

This reading is also in accord with all examined holdings in the Eleventh Circuit as well as other Circuits. E.g., Edwards, 602 F.3d at 1299 (holding employing illegal along with "provid[ing] them with social security numbers and names, and pa[ying] them in cash in order to conceal, harbor, and sheild the[m] from detection" sufficient); United States v. Cuevas-Reyes, 572 F.3d 119, 122 (3d Cir. 2009) ("[W]e adopted the test of our sister circuits: `harboring, within the meaning of § 1324, encompasses conduct tending substantially to facilitate an alien's remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.'" (quoting Kim, 193 F.3d at 574)); United States v. Tipton, 518 F.3d 591, 595 (8th Cir. 2008) ("`Harboring' means any conduct that substantially facilitates an alien's remaining in the United States illegally," such as "by granting them employment, by providing the aliens a place to live, daily transportation, and money to purchase necessities, and by maintaining counterfeit immigration papers for each alien"); United States v. Shum, 496 F.3d 390, 392 (5th Cir. 2007) (requiring, as a necessary element of a harboring violation, proof that "the defendant's conduct tended to substantially facilitate the alien remaining in the United States illegally"); Zheng, 306 F.3d at 1086 (finding sufficient evidence that defendants "harbored the illegal aliens by providing both housing and employment") (emphasis supplied). Accordingly, while it is clear that the act of employing an illegal alien may be significant evidence that an employer has harbored an unauthorized alien in violation of § 1324, unless that employer has provided further material aid constituting "substantial facilitation," that alone is not sufficient.

Under this construction, plaintiffs' harboring claim must fail as a matter of law. In their complaint, plaintiffs contended defendants violated § 1324(a)(1)(A)(iii) by conspiring to provide free housing and transportation to illegal immigrants and by employing them. As the statutory analysis above indicates, the crux of plaintiffs' harboring claim must be proof that defendants provided free housing and transportation. Plaintiffs concede, in a footnote, that "they do not have sufficient evidence of transporting," and all but admit they have insufficient competent evidence defendants housed unauthorized workers. The only evidence to which plaintiffs point suggesting that defendants (or their alleged co-conspirators) provided room and board to unauthorized immigrants is the testimony of plaintiff Hall. She indicated that Pilgrim's Pride "was housing [illegal immigrants] for four weeks . . . to help them get up on their feet[]." Hall provided two bases for this belief. First, she indicated that she once saw a company van pick up workers of Hispanic ethnicity at a trailer park and transport them to the facility. However, she provides no basis whatsoever to believe these individuals were unauthorized to work in this country. Moreover, her testimony suggests that the occurrence was so rare that "[e]verybody was talking about it within the plant." Second, she states that the basis for her belief that the company provided housing and perhaps transportation to unauthorized workers was that she "talked to a Hispanic on night shift" — and "whether it was a rumor or the truth, he's the one that said it." Hence, her belief is patently based upon hearsay. Indeed, Hall candidly admits that she has no "personal knowledge" that plant managers directed staff to arrange for free temporary room and board or transportation. Plaintiff Hall's unsupported belief that the company provided housing to unauthorized immigrants, premised purely on hearsay and speculation, cannot indicate defendants engaged in activity constituting "harboring."

Doc. no. 49 (Second Amended Complaint), ¶¶ 24, 28, 35.

See doc. no. 111 (Response to Motion for Summary Judgment), at 13 ¶ 52, 48 n. 39.

Doc. no. 104, Ex. 6 (Deposition of Jennifer Hall) [hereinafter Hall Deposition], at 299; see generally id. at 286-300.

Id. at 290-297.

Id. at 294.

Id. at 298.

See id. at 286, 299-300.

Plaintiffs also proffer a new factual theory of a purported harboring violation to oppose defendants' motion for summary judgment that was not contained in their second amended complaint: i.e., that defendants or their co-conspirators "tipped off" unauthorized workers prior to raids by immigration officials. Such an action, presumably, would violate § 1324(a)(1)(A)(iii). However, upon inspection, the evidence plaintiffs rely upon for this new allegation fails entirely to implicate defendants. Plaintiffs first point to plaintiff Rocha's deposition and interrogatory answers, wherein he asserts that "Carlos and Benito Chavez, lead men, they have knowledge about tipping off known illegal workers prior to INS raids. . . ." Rocha clarified that this referred to a man named Carlos Baltizar who, at an unknown point in 1997 or 1998, stated that immigration officials were "coming to Russellville." Plaintiffs, however, make no attempt to link these two individuals to defendants or the conspiracy they allege. Hence, it is entirely unclear how such evidence could support a harboring violation that would, as plaintiffs assert, "establish a pattern of racketeering [in violation of] § 1961(5)." Plaintiffs attempt to shore up their "tipping off" contention by suggesting Hall's testimony corroborates the assertion. It blatantly does not. At most, plaintiff Hall indicates that she saw some "Hispanics," though she cannot remember how many, hiding on the one occasion during her fifteen year tenure, in "the later `90s or the early 2000s," when immigration officials came to the Russellville facility. She expressly states that she did not hear anyone, much less either defendant or any alleged co-conspirators, telling them to do so. Beyond that, she only indicates that there were occasionally "rumors" that immigration officials would be in town and that, on those days, workers in her department would be absent. Only abject speculation could render this evidence of a harboring violation attributable to defendants.

Doc. no. 111 (Response to Motion for Summary Judgment), at 48.

Doc. no. 104, Ex. 5 (Deposition of Jose Rocha) [hereinafter Rocha Deposition], at 402; doc. no. 111, Ex. 5, Ex. 38 (Plaintiff Rocha's Responses to Defendants' First Set of Interrogatories), ¶ 1.

Rocha Deposition, at 403-05.

See id. at 406. Carlos Baltizar seems to appear nowhere else in the record.

Doc. no. 111 (Response to Motion for Summary Judgment), at 49. Indeed, it appears that the only admissible evidence of any party engaging in activities that could be considered harboring is plaintiff Rocha's admission that he drove individuals to the Russellville facility to apply for work, knowing that they had purchased false identification documents from his then-roommate Antonio Valesquez. Rocha Deposition, at 154-57. Cf. Official Committee of Unsecured Creditors of PSA, Inc. v. Edwards, 437 F.3d 1145, 1152-56 (11th Cir. 2006).

Doc. no. 111 (Response to Motion for Summary Judgment), at 49.

Hall Deposition, at 362-67.

Id. at 366.

Id. at 409-12. It is also notable that Plaintiff Hall admitted that some of the four occasions during the 2000s when, she testified, rumors of INS raids caused excessive absenteeism coincided with days during which "the Hispanic people were on the march." Id. at 410. That is, those were days on which equal rights marches by Hispanic workers or parades in favor of unionization had occurred. See id. at 319-21.

Plaintiff Hall expressly disavowed, as information not within her personal knowledge and not even provided by her, an answer to defendants' interrogatories propounded to her that was identical to the "tipping off" quotation provided above. Hall Deposition, at 388. This is one of no fewer than thirteen distinct times during her deposition when plaintiff Hall testified that she had no personal knowledge of, nor had provided the information contained in, her sworn answers to interrogatories. Id. at 388, 393, 396-404, 408, 414-16. This is so, despite that fact that several of the interrogatory answers expressly asserted that she had "personal knowledge" of certain facts she later disavowed. Id. at 402-03. Plaintiffs' Counsel Foster signed the interrogatory response. Doc. no. 111, Ex. 6, Defendants' Exhibit 12 (Plaintiff Jennifer Hall's Response to Defendant's First Set of Interrogatories), at 12. Notwithstanding the requirements of Federal Rule of Civil Procedure 22(b)(1)(a), Hall did not. This court is not in the least amused by the extra layer of confusion injected into an already voluminous and convoluted record by plaintiffs' fast-and-loose approach to the requirements of Federal Rules of Civil Procedure 33(b)(1), (5) and 26(g).

Accordingly, and in the alternative, defendants' motion for summary judgment is due to be granted because plaintiffs have failed to submit competent evidence of a pattern of racketeering conduct — that is, evidence from which a jury could find that defendants "commit[ted] at least two distinct but related predicate acts." Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1283 (11th Cir. 2006)

IV. CONCLUSION

As a matter of policy, there is great appeal to the argument that the problem of illegal immigration in this country may best be dealt with by holding accountable those whose actions create much of the incentive for unauthorized immigrants to flood into the United States, namely, the employers who hire them. See Affordable Housing Foundation, Inc. v. Silva, 469 F.3d 219, 231 (2d Cir. 2006) ("Employment is the magnet that attracts aliens here illegally."). Given the scarce resources available, deputizing private citizens through the mechanisms of RICO, likewise, makes a great deal of practical sense. See Williams, 465 F.3d at 1290 ("It is consistent with civil RICO's purposes — to expand enforcement beyond federal prosecutors with limited public resources — to turn victims (here, Mohawk's legal workers) into prosecutors as private attorneys general seeking to eliminate illegal hiring activity by their own employer."). Yet "whatever the merits of [those] arguments as a policy matter, [this court] is not at liberty to rewrite RICO [or, for that matter, the Immigration and Nationality Act] to reflect . . . views of good policy." Bridge v. Phoenix Bond Indemnity Co., 553 U.S. 639, 660 (2008). Plaintiffs have not provided sufficient evidence in support of their claims to create a genuine issue of material fact as to whether defendants violated the relevant provisions of the Immigration and Nationality Act, and, whether they were damaged "by reason of" those violations. 18 U.S.C. § 1964(c).

Accordingly, and in light of the foregoing, it is ORDERED, ADJUDGED, and DECREED that: defendants' Motion for Summary Judgment and Motion to Exclude the Testimony of George Borjas are due to be, and the same hereby are, GRANTED; and that all claims of plaintiffs be, and the same hereby are, dismissed with prejudice. Plaintiffs' Motion for Further Discovery pursuant to Rule 56(f) is DENIED. Defendants' Motion to Exclude the Testimony of James M. Johnston and plaintiffs' Motion to Amend or Correct the Scheduling Order are both DENIED, as moot. Costs are taxed to plaintiffs. The Clerk is directed to close this file.

DONE and ORDERED