COM. OF PUERTO RICO, ETC. v. Alfred L. Snapp & Son, Inc.

• Decision Date: 19 April 1979
• Docket Number: Civ. A. No. 79-0007(H).
• Citation: 469 F. Supp. 928
• Court: U.S. District Court — Western District of Virginia
• Parties: The COMMONWEALTH OF PUERTO RICO, on the Relation of Carlos S. QUIROS, Secretary, Department of Labor and Human Resources, Plaintiff, v. ALFRED L. SNAPP & SON, INC., et al., Defendants.

469 F. Supp. 928

The COMMONWEALTH OF PUERTO RICO, on the Relation of Carlos S. QUIROS, Secretary, Department of Labor and Human Resources, Plaintiff, v. ALFRED L. SNAPP & SON, INC., et al., Defendants.

Civ. A. No. 79-0007(H).

United States District Court, W. D. Virginia, Harrisonburg Division.

April 19, 1979.

Luis Guinot, Jr., Robert C. Watson, Fairfax, Va., Charles S. Fax, Washington, D.C., for plaintiff.

Thomas J. Bacas, Charles, Karalekas & Bacas, Washington, D.C., William A. Johnston, Ronald J. Brown, Harrison & Johnston, Winchester, Va., for defendants.

MEMORANDUM OPINION

TURK, Chief Judge.

During the spring and summer of 1978, weather and climatic conditions combined to produce a record apple crop in the orchards along the eastern coast of the United States. This suit concerns the recruitment of workers to harvest that crop.

Stated briefly, a statutory and regulatory scheme has been established by the federal government to insure that domestic workers are given priority over foreign workers for employment opportunities within the United States. See generally, Wagner-Peyser Act, 29 U.S.C. § 49, et seq.; Immigration and Nationality Act, 8 U.S.C. § 1101 et seq.; 20 C.F.R. Part 655; 8 C.F.R. § 214(h)(3). As the time for harvest draws near, the apple growers, as do other crop growers, avail themselves of this system, known as the United States Employment Service, to secure laborers to work the harvest. This service is, in fact, a national system of public employment offices. If workers cannot be found locally, the interstate facilities are utilized to locate available workers in the domestic labor market. For purposes of this service, Puerto Rican workers are considered to be part of the domestic labor force. 29 U.S.C. § 49b(b). If the demand for workers exceeds the domestic labor supply, the employers may petition the Secretary of Labor for a certificate of need for foreign labor, 8 C.F.R. § 214.2(h)(3), 20 C.F.R. Part 655, and, if granted, apply to the Attorney General for non-immigrant visas for persons to perform temporary labor. 8 U.S.C. § 1101(a)(15)(H)(ii); 8 U.S.C. § 1184(c).

Commencing in April, 1978, apple growers in New York, Maryland, Virginia, and West Virginia sought to secure seasonal labor for the late summer and early autumn apple harvest through the interstate clearance system. The implementation of this process, however, was to run a troubled, confused and turbulent course. Ultimately, on the day on which the brief harvest period was to begin, far fewer workers were in the orchards than were needed for the task. This situation posed the very real danger that certain varieties of apples would overripen on the trees, thereby greatly diminishing their commercial value. Shortly before the harvest was to begin, the apple growers of the several states filed suit in this court seeking a mandatory injunction against the United States Secretary of Labor, the Commissioner of the Immigration and Naturalization Service, and their subordinates, to permit the recruitment and employment of foreign workers. The Commonwealth of Puerto Rico was permitted to intervene on behalf of its citizens who allegedly would have been displaced by the employment of foreign workers. To insure that the harvest would be completed, this court entered a preliminary injunction ordering that a certain number of foreign workers be allowed to enter this country to pick the apples. Frederick County Fruit Growers Association, Inc., et al. v. Marshall, et al., Civ. Action No. 78-0086(H) (August 31, 1978), appeal dismissed and remanded, 594 F.2d 857 (4th Cir. 1979) (unpublished).

During the arguments preceding the entry of the preliminary injunction, it was represented to this court that the apple growers recognized their obligation to give priority in their hiring process to the Puerto Rican workers notwithstanding a court order permitting the employment of foreign workers. The primary thrust of the instant suit is the assertion by the Commonwealth of Puerto Rico, on the relation of Carlos S. Quiros, Secretary of the Department of Labor & Human Resources, that the Virginia apple growers failed to fulfill their acknowledged obligation.

The present action was commenced on January 11, 1979. The named defendants are numerous companies and individuals engaged in the apple industry, all of whom reside in Virginia. Jurisdiction is predicated upon 28 U.S.C. § 1331, and 28 U.S.C. § 1337. By its second amended complaint, plaintiff alleges that each defendant filed a clearance order with the Virginia Employment Commission, an agency associated with the Federal Employment Service System, containing job orders for a specified number of unskilled agricultural laborers. The Puerto Rico Employment Service, another member of the interstate clearance system, received job offers from all east coast apple growers totalling 2,318. By August 14, 1978, plaintiff allegedly had recruited 1,094 Puerto Rican workers and thereafter continued its recruitment process until a sufficient number of workers were obtained to satisfy the job orders. Of the 2,318 Puerto Rican workers recruited by plaintiff, only 992 such workers were transported to the mainland, allegedly because of oral advice received from the United States Department of Labor to the effect that the growers had refused to employ those Puerto Rican workers who had arrived previously. The Virginian growers who are defendants here are alleged to have made commitments to employ 787 Puerto Rican workers although only 420 workers arrived in the Virginian orchards as a result of the Labor Department's warning. Within three weeks of their arrival, fewer than 30 remained employed. It is alleged that the remainder were either unable to secure the promised employment or, if employed, were dismissed for lack of productivity or picking damaged fruit. Plaintiffs also allege that the Puerto Rican workers were subjected to less favorable working conditions than the Jamaicans who had been recruited pursuant to the court order. Such discrimination allegedly benefited the productivity of the Jamaican workers to the detriment of that of the Puerto Ricans. For the alleged failure to employ, unequal treatment, and improper termination, plaintiff seeks a declaration that defendants' actions were in violation of the Wagner-Peyser Act, 29 U.S.C. § 49 et seq., the Immigration and Nationality Act of 1952. 8 U.S.C. § 1101 et seq., as amended, and the regulations promulgated under each, and a permanent injunction to enjoin any future violation of the same.

On February 15, 1979, defendants filed a motion to dismiss asserting, inter alia, that plaintiff lacked standing to bring this action. After all briefs were submitted, the court heard oral argument on March 7, 1979. After a careful evaluation of the facts alleged in the complaint in light of the evolution of the doctrine of parens patriae standing, the court is of the opinion that the motion is well taken and that dismissal of the complaint is required.

The concept of parens patriae standing is a rather elusive one which does not lend itself to precise definition. As a preliminary matter, it should be distinguished from those instances where a state seeks to redress an injury sustained in its proprietary capacity, as where a state sues as an injured consumer. See, e. g. Hawaii v. Standard Oil Co., 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972). Before assessing the merits of the instant case, three observations should be made regarding the present posture of this case. First, the Commonwealth brings this suit solely in its capacity as parens patriae. No separate proprietary interest in this litigation has been asserted. At best, any such interest would be predicated necessarily upon the harm to the general economy, the consequential reduction in state revenues, and the increased payment of public benefits. Taken to its logical conclusion, this proposition would permit a state to challenge any business or governmental decision which would adversely affected its economy. The connection between this proprietary concern of the state and the alleged wrong is too attenuated to be cognizable for purposes of standing. Pennsylvania ex rel. Shapp v. Kleppe, 174 U.S.App.D.C. 441, 445, 533 F.2d 668, 672 (1976). Rather, redress for these wrongs must be sought in the role of parens patriae. Second, if parens patriae standing is appropriate, the Commonwealth of Puerto Rico is an entity capable of asserting that interest. Commonwealth of Puerto Rico v. S.S. Zoe Calocotroni, 456 F.Supp. 1327 (D.P.R.1978); compare City of Hartford v. Towns of Glastonbury, 561 F.2d 1032 (2d Cir. 1976); Board of Supervisors of Fairfax County, Virginia v. United States, 408 F.Supp. 556 (E.D.Va.1976), appeal dismissed 551 F.2d 305 (4th Cir. 1977). Finally, plaintiff seeks only declaratory and injunctive relief. Thus, the court is spared the necessity of wrestling with the thorny problems inherent in parens patriae damage actions. See generally, Hawaii v. Standard Oil Co. of California, 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972) (anti-trust damages); California v. Frito-Lay, Inc., 474 F.2d 774 (9th Cir.), cert. denied 412 U.S. 908, 93 S.Ct. 2291, 36 L.Ed.2d 974 (1973) (class action); West Virginia v. Chas. Pfizer and Co., 440 F.2d 1079 (2d Cir.), cert. denied sub nom. Cotler Drugs, Inc. v. Chas. Pfizer & Co., 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971) (class action); In re Motor Vehicle Air Pollution Control Equipment, 52 F.R.D. 398 (C.D.Cal.1970), cert. denied 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973) (class action); In re Montgomery County Real Estate Litigation, 452 F.Supp. 54 (D.Md.1978); Note, State Protection of its Economy and Environment: Parens Patria Suits for Damages, 6 Columbia J.L. & Soc.Prob. 411 (1970).

As in all other cases where the standing of a party to bring suit is in issue, the court is called upon to determine whether the plaintiff has "alleged such...