that every person employer solutions hire presented appropriate documentation to verify their eligibility for employment in the united states the record is undisputed that employer solutions on site certification itself the certainly the on site representative could sign the form the form authorizes any authorized representative of the employer to sign the form and therein lies ultimately the fundamental error of the ministry of law judge there is no requirement in the statute that the same person who reviews the original documentation verifies employment be the authorized representative for the employer in fact the government admits that in this briefing it emits that there is nothing in the act that imposes that requirement there is likewise nothing in the regulations that imposes that requirement the only obligation is that the employer provide the certification and the new requirement that the agency conjured up here is one that has never been expressed that a regulation had never been expressed in any interpretive guideline or other type of official agency document it was something that was imposed and articulated retroactively for the first time in this case and the sad irony your honour's is that employer solutions was trying to be extra diligent in doing more than what the act requires just sounds like as your question acknowledges the onsite representative could have signed the certification or would they do it that way then way it certainly could be done that way your honor but here the second level review added additional certainty that you had another set of od was at least looking out of a lease to a real color copies of the documents and  sure there weren't people being hired him properly and so did the whole purpose and idea was to look at the person directly and look at the original documents to make sure that that that person was legitimate lead in and the process that was being used sort of defeats that that goal and a purpose of the statute absolutely not your honor because that that on site i have all review with the original documents was in fact done the record again is undisputed by the government that the on site representatives who are authorized under the act in statute or regulations to be the person who does the eyeballing look at the original documentation look at the documents to make sure they appear genuine and relate to the higher e and in fact the records undisputed that everyone who was hired was in fact eligible to work here but the person that did it firsthand did not have to attest to it so doesn't that open the door for more error because the person that attested did not verify the originals and see the person so it it opens it up for some further because the person that actually did it didn't attest to it no sir your honor in fact either the statute or the implementing regulations for the person did attest to it the first person that saw the individual in the original dark moat you know i was a funny doesn't open up arrow the i did the person that saw him firsthand and saw the riginal documents did not attest to anything that is correct now that under the on site representatives to tell them the requirements of the statute what the forms what forms must be presented and what they must do under the act the on site representative provides that does the review of the act requires everything i'm supposed to do no form that the attorney general or the agency has provided but obviously there's transmittal letters in their emails and things like that but here here's the point your honor the act requires two things from the employer it says the employer as the entity must conduct these reviews and the regulations specify that the employer can be not only any employee of the but any agent or other person acting in its interest so there's no question that the verification process and the on site review complies with the statute and regulations and the government never disputes that secondly the employer your must provide an ad test ation there is no requirement in the statute or regulation that says well the person who does the eyeballing of the documents must also provide the employers at test ation and in fact the form i nine itself doesn't require that section t form i know says that the employer quote the employer into t must sign the form and then in the signature block it reads it's this is the signature of the employer or it's all thor representative so when an employee is an entity like a corporation or limited partnership necessarily a person must sign on his behalf but there is no limitation to that the authorized representative must sign this for so in the context the i being referred to there is the employer but your honor all that just goes to whether or not there is a technical violation of the statute or not there are two additional grounds for vers with the photograph before he makes that test haitian so that if not telling the truth each subject of perjury that may well be in the individual who signs that may well want to do that but the question here is did the agency correct crossed a regulation it gives fair notice to the employer that the same individual who does the verification must be the same individual who the authorized representative on  sign the form and to this day the government has never identified anywhere in the statute where the regulations or anything in any agency document before the assessment of the fine here that put the employers is the meaning of it all does seem to me the issue of fair notice is how fair must a notice to be how clear must the notice be if in fact we agree with government of the proper interpretation the interpretations the proper one was it explicit enough was it clear enough was there guidance and some form that put you on notice what you work with that some what was if we do agree that we read almost together the proper interpretation only thing that really makes it work is that the if there is such a word is the person who actually i've all the applicant why why is that interpretation not a fair enough notice to you but the i think it's a straightforward simple answer your letter comes from this court's line of authorities under the diamond roofing case is unfair votes in order to assess a fine under a civil regulation like this the existence of the requirement must be reasonably ascertainable ball for the assessment of the penalty so this is not a city it's not a situation where the government can come in retroactively and say well this is a reasonable interpretation you refer to it now maybe that might be true going forward but if there isn't fact a violation well based on a new interpretation never before announced you have to be able to put your finger on some documents in the administrat record or the legislative history or the agency's regulations in the publications of those regulations that say the regulator community was on had reasonable basis for ascertaining this requirement and the government had were for my nine or in in the record in those instructions do not provide that court of guidance and in fact your honor the twenty eight jail letter that the government submitted last week in as much concedes this by asking indicator that the person making it a station needed to commit conduct the activities investigation and the i attest in what follows the attestation just doesn't make sense other then weeding it very liberally to mean i and my people have done all of the following but i don't say i and my staff and my agents says i have done the following so that to me is some notice of beyond what you're saying was so obscure about it it's just a question you raise a legitimate question a how many hundred thousand dollar question i'm trying to remember hundred fifty thousand two hundred fifty thousand dollars question here but what about just the form itself isn't that i mean when i swear t completed and signed by the employer period the corporate entity the box is the certification of the employer the signature is to be of the employer or authorized representative because if obviously the employer is an entity it has to be an authorized representative signing that is consistent with the statute in the regulations that says it's the employer who gives the attestation not a particular image individual because that individual has no obligation to statutory or regulatory language or administrative guidance that that is supposed to be an ad test ation of the individual or of the entity but even as it had test asian of the individual it is still technically correct here in the records undisputed about that don't instructions to the form say that the employee employees must present original documents and that was done because employers instructions to the to the form it doesn't but the each person who was hired did present original documents to the employer here to the on site representatives nothing in the instructions your honor says that the same person who were of use those original documents must be the authorized representative who gives the corporate attestation in fact the government changed those instructions after the employer solutions here was in the process of being sanctioned to make that very point clear thus in effect conceding that the instructions prior to that did not give the regulate regulate a community where you don't think where it says employees must present original documents as instructions to form one nine apply to that form that you must present original documents in order to find  me if it did it does a part of that your honor but my point is that they did present original documents to the employer in each instance but not to the person who signed the i ninety four that is correct instructions don't specify that further with o court my name is andrew o'malley and i represent the response in this case there are two main points that i would like to address today first that it is clear from the i nine form that so that the individual attesting to having reviewed the documents has to be the same person who actually reviewed the original documents and determined that they legitimately related to the individual who presented them and the second point is why that matters and why it's clear that's really the crux the l g s decision is that this this form that is the i guess where the rubber meets the road in terms of isis and force of the comprehensive statutory scheme it is clear that the individual who signs the form has to have reviewed the documents presented by the employer the original documents the form says i and it requires that the individual provide their job title it doesn't allow for a rubber stamp by the employer or just anybody to sign that it has to be the same person they reviewed those documents it's  interpretation that is not a representative of the corporation that is finding it not an individual well it was just a representative the corporation it wouldn't say i reviewed these documents and i determined that these documents relate to th individual under the penalty of perjury and they would just allow that any corporate sing to her on their at all or a rubber stamp by the employer saying that they perform that function and that's not what it is it's under pains and penalty of perjury that this individual reviewed these original documents look at this person and determine that they legitimately relate to them or recently relate to you ten original documents but the form does not so your original documents the form says the instructions say i believe the instructions say that the employee must present original documents the regulations state that the employee must present original documents the handbook states that the employee must present original documents to him but also states that the employer must review original documents and we know from the regulation petitioner makes a point of this in their brief that in the section of the regulation where it lays out the employer's obligation it doesn't say the word original documents just says documents but what it does in the l j recognize this here is say documents presented by the employer for say pursu that there was any illegal person being hard of only over two hundred people there was no proof that any of them were improperly hard that were were illegal aliens that didn't have a job permit or  don't have a work permit well there was no charge that these individuals were authorized i don't know that the evidence really shows that it wasn't delved into they did submit excuse me either a fire results for the documents that were submitted to the individual who is acting on their behalf or flexi corp the hiring agent in texas as my understanding is from the records that flexi corp agent then sent those documents that were presented by that individual somewhere else to be  and here and this is one of the reasons that is so important at the same individual attest that has reviewed those documents the s s g has no idea if those documents that were sent somewhere else for either a fight actually relate to the person who was hired they and e s c s decertified that had been done and i actually did task that we have here is how to match up the person doing the sort of creation to the task that they've not been challenged on they represented here and presented evidence i suppose for or other representatives as as indicated and it's one thing to make all this clear today it's something else for us to be able to say that they were sufficiently on notice to have this quarter million dollar question  the been at least can you allow i've been better for the clarity that we have now to have existed at the time that this particular fact pattern a room but i don't think there's anything unclear i didn't think it would concede that i just w better is all i'm asking that we have taken eenie question alpes i guess that you knew regulation could be challenged too so don't hold me to it but it is clear now and i hope you will say that is clear now else why make the change  so you can see that my yes it is clearer now it is clear now and the real question is was there sufficient notice first of all they didn't raise the fair notice issue at all to the agency they state that they did in their answer to the complaint they did not they raised have remedy in this case or or ruled on this case if they had raised a fair notice issue they did not second again we think it's clear from the form that a reasonable person would read that form and thin reviewed the documents presented by the employee although i didn't and i looked at this employee in determine that he is reasonably appear to relate to that individual well no i didn't do that either so clearly they're on notice that this is what's required in the form that is again where the rubber meets the road for how the agency manifests the employer verification requirements and it's tool for ensuring compliance of that you don't think there was a good faith effort on their part to try to comply with with the spirit of of the statute because they did have somebody sit there in person and talk to the person and see the original document that person in turn tome told the employer that things were good and things and i think the good job of saying this is not substantial compliance you can falsely attest here and say that you complied with the with the requirements of the at the issue of this being a technical procedural violation for which the good faith defense is available force is a substantive violation for which it is not really goes to i says policy memorandum the virtue memorandum which laid out what constitutes technical and procedural versus substantive and the a require that they say you know the position makes a big deal of employer and agency and things like that it's clear that the regulations set up a very loose system to allow employers to not have an undue burden here this because we're operating under the assumption here that there was an eight is some sort of agent relationship because that's the factual determination that the chain but if you look at the record if you look at the outsourcing agreement here between us s g and flexi corp on page one thousand and ten of the record that's the agency paginated or one thousand and seventeen by this course there is a statement in their contract that says there is no principal agent relationship here and flexi corp is not allowed to perform the functions or i would assume that word of somebody who says that they review these documents when they don't they have no idea they're reviewing copies of documents they have no idea if those copies of been tampered with or if a piece of tape was put over a social security card that said not authorized to work or not authorized for employment just take that over make a copy and you're set and they have not looked at the individual to determine if these documents that were reviewed actually relate to that individual mandate some concern that the employer that insurance that assurance that somebody has done this and that they're not employing somebody who's unauthorized it gives them peace of mind as well as something is actually certified this and that and that's one of the principal functions of  ice's reviewing it and auditing it's putting the employer's mind at ease and it's also the fact that this is a tool for enforcing the broader scope of thirteen twenty four and why that we're talking about the knowingly hiring and the knowingly continuing to  employ individuals who are on authorized now if we take the s s g for example to say one of their companies with whom they are in a contract with in idaho i don't know is knowingly employing unlawful individuals and sending documents to be assessed g e saying we reviewed these but that was our right well then if ice goes up to the closure and in idaho i guess i said for knowingly something like this fair notice where there's good faith whether something else they can be held to that standard at this point or as opposed to henceforth and forever more so i'm not saying your argument is not useful but i'm not that the office of chief administrative hearing officer or whoever else it is may have sanctioned other employees for doing something similar to this i haven't seen a case where this has come up which i think lends to the fact that i don't think anybody really misunderstands that requirement at station it just doesn't cost to read that and think that what they were doing was was legitimately within what the regulations require because it's clear the form itself says i have examined the documents does not say the original document if you look at the form by itself it's not clear that it requires original documents as i have examined the documents the form says i have examined the documents presented by the employee and we know that that employee has to present original documents and the instructions were clarified a month after this occurred it was yeah i don't know if it was a month exactly but it was there why were they clarified if they were already clear what the instructions perhaps the instructions were unclear that was not in the instructions but i think on the form itself it's quite clear i don't know if they i don't know why they like it and have it later to us but it's to avoid this problem i've imagined is why it was done and that you conceding anything about this case i have no doubt that's what was done to avoid this in the future absolutely and i'd like to point out too that well the on the fact that they didn't exhaust their unfair notice argument beyond the fact that it's clear on the face of this reviews those documents they have to one review the documents and complete section two inside the attestation it doesn't allow the regulation of so it was unclear the regulations don't allow a split of functions like this at all and i think the  elegy recognized this when she said look you can't you can't have why didn't you have your on site representative sign that attestation when they reviewed those documents the split of functions doesn't seem to comport with the regulations and they were at least on notice of something there was not right was done here and that goes to my very first point the government just told you that the regulations don't allow or seem to contemplate split functions between eyeballing the original documents and signing the form absolutely incorrect the regulation is eight c a for section two seventy four a point to the one little two that provides that goes to the who has to review the original documentation it says the employer his agent or anyone acting in his interest must examine the original documentation the recollection glass agent could have signed the form and i want to be ok no he could review the original documentation but the regulation about the attestation is more limited that is section two seventy four a point two eight three it says and says only the employer must complete an ad test ation so the very regulation the government now waiving saying put people on fair notice you couldn't split up this function expressly said as the eyeballing of the original documentation to make sure it's not an authorized alien can be done not by the employer but by anyone acting in his interest but even if that's still on the regulation says it's the employer who must provide the anticipation the regulations clearly provide a split function and what's happened here is that the agency cr perhaps an in article a form without proper instructions that they now regret and have changed to provide clarification employee must present the original document and then the employer must examine the person and document i mean but the regulations say that the damage nation can be done by the employer or anyone acting on his behalf that doesn't that make it clear that the employer must examine the original documents that are presented to the not in the context since you have the governing regulations and we have been sanctioned for i mean just looking at that language on know sir your honor because this is an ad test ation of the employer and the employer is defined by the regulation to include agents absolutely i mean if the regulation the record excerpts at tab see the second affirmative defense in third affirmative defenses included the assessment here of the liability until cs would violate due process and that's what the diamond routine case is like a fair notice is a due process issue also i would refer you to the tenth affirmative defense that provides that he has clear solutions had reasonable grounds for its conduct in addition your honor the government survey in iraq atory on employer solutions asking the bases for these affirmative defenses as in iraq atory number forty six that appears in the administrative record the answer to it does at pages three twenty two to three twenty three and the government included that as part of the exhibit to a summary judgment written before the age of this was before her and in the answer there you'll see that it goes on to say that he has to believe that is what i was doing was was reasonable and correct and compliant and had no reason to go otherwise that's raising the fair notice argument your honor and then the third point your honor the government says this matters this requirement matters is not splitting up the functions matters because the ad test asian puts the corporate employer on the hook there's no that has been done here each employer solutions had an authorized representative signed the bottom line and put the company on the hook what we're complaining about is not that we're trying to evade the statute but we shouldn't be unfairly assessed