Frederick County Fruit Growers Ass'n v. McLaughlin

• Decision Date: 17 January 1989
• Docket Number: Civ. A. No. 87-1588.
• Parties: FREDERICK COUNTY FRUIT GROWERS ASSOCIATION, INC., et al., Plaintiffs, v. Ann McLAUGHLIN, Sec'y of the Dep't of Labor, and Cedrick Turner, et al., Defendants.
• Court: U.S. District Court — District of Columbia

703 F. Supp. 1021

FREDERICK COUNTY FRUIT GROWERS ASSOCIATION, INC., et al., Plaintiffs, v. Ann McLAUGHLIN, Sec'y of the Dep't of Labor, and Cedrick Turner, et al., Defendants.

Civ. A. No. 87-1588.

United States District Court, District of Columbia.

January 17, 1989.

Thomas E. Wilson, Marc Alan Silverstein, Seyfarth, Shaw, Fairweather & Geraldson, Washington, D.C., W.A. Johnston, Ronald J. Brown, Harrison & Johnston, Winchester, Va., for plaintiffs.

Sandra Schraibman, Judry Subar, U.S. Dept. of Justice, Civil Div., for Ann McLaughlin.

Roger Rosenthal, Edward J. Tuddenham, Migrant Legal Action Program, Washington, D.C., Garry G. Geffert, West Virginia Legal Services, Martinsburg, W.Va., Gregory S. Schell, Legal Aid Bureau, Inc., Salisbury, Md., Michael Guare, Pine Tree Legal Assistance, Bangor, Me., for Cedrick Turner, et al.

OPINION

CHARLES R. RICHEY, District Judge.

                Table of Contents                                     Page
                  I. Introduction .................................   1022
                 II. Facts ........................................   1023
                III. Discussion
                     A. The Original Action
                           —Summary Judgment
                           is Granted in Favor
                           of the DOL ..............................  1026
                     B. The Counterclaims
                           —The Farmworkers'
                           Motion for Summary
                           Judgment is Granted as
                           to 1983 and 1985, and
                           the Growers' Motion for
                           Summary Judgment is
                           Granted as to 1984 ......................  1026
                        1. Equitable Restitution
                                Requires the Growers
                                to Pay Back
                                Wages for 1983, But
                                Not for 1984 .......................  1028
                        2. The Growers Must Pay
                                Back Wages for 1985
                                as a Matter of Contract.............  1030
                     C. The Farmworkers'
                           Motion for Certification
                           of a Defendant Grower
                           Class Shall be Granted
                           as to 1985, But Denied
                           Without Prejudice as to
                           1983 ....................................  1031
                

I. Introduction

This lawsuit is one in a sequence of separate actions arising from attempts by the Department of Labor ("DOL") over the last decade to regulate the compensation of alien migrant farmworkers. The issues at the core of this action have been before this Court, as well as the Court of Appeals for the District of Columbia, several times.

These issues have also been presented to federal courts in Virginia and West Virginia.¹ Indeed, it is apparent to the Court that this lawsuit is simply another chapter in a consistent and dedicated effort by groups including the plaintiffs, associations representing numerous fruit growers along the east coast (the "Growers"),² to evade obligations imposed by this Court in the prior suits. As discussed in further detail below, the Court will not permit such a result.

Procedurally, there are now before the Court three motions for summary judgment—the defendant DOL's motion for summary judgment as against the plaintiff Growers, and what amount to cross-motions between the Growers and the defendant-intervenors regarding counterclaims interposed by the defendant-intervenors. The defendant-intervenors consist of a class of migrant farmworkers (the "Farmworkers") whose right to wages under DOL regulations are at issue for the years 1983, 1984 and 1985. Also before the Court is the Farmworkers' request for certification of a class of defendant Growers who might be subject to potential liability under the Farmworkers' counterclaim.

The Court has determined to grant DOL's motion for summary judgment; to grant the Farmworkers' motion for summary judgment as to 1983 and 1985; and to deny the Growers' motion for summary as to 1983, but to grant it as to 1984. The Court grants in part the Farmworkers' request for class certification, and denies the remainder without prejudice.

II. Facts

Although the general facts underlying the Growers' complaint have been set forth in copious detail in this Court's prior opinions, as well as in the opinions of the Court of Appeals, it is useful to reiterate those facts as they bear upon the Court's decision here.

In 1978, the DOL adopted a regulation which requires growers who compensate migrant farmworkers by the piece (as opposed to an hourly or other time-based wage) to modify their piece rates annually to ensure that the aggregate wage paid to such workers will be "equal" to the DOL's minimum hourly rate paid to foreign workers.³ The DOL originally interpreted this provision as requiring growers to hold productivity constant and to increase piece rates in order to ensure an aggregate equality between piece workers and hourly workers as the DOL's minimum hourly rate increases over time. Absent such an interpretation, growers could create a false equality by demanding that piece workers increase productivity in order to bring their aggregate wage up to that paid hourly workers.

In 1980, however, the DOL changed its position. In approving the applications of growers to employ migrant workers, and in a subsequent 1981 interpretive letter, the DOL effectively took the position that a grower could increase productivity, rather than piece rates, in order to satisfy his obligation to establish aggregate wage equality between piece and hourly workers.⁴ In NAACP v. Donovan, 558 F.Supp. 218 (D.D.C.1982) (Richey, J.) ("NAACP I"), this Court rejected the DOL's interpretation.⁵ The plaintiffs in this action were not parties to that proceeding, and the DOL did not appeal from this Court's ruling. However, the DOL only applied the ruling of NAACP I to growers in West Virginia, the location of the workers on whose behalf the suit had been brought.⁶

Because the DOL gave this Court's ruling in NAACP I such limited effect, the plaintiffs returned to this Court. In NAACP v. Donovan, 566 F.Supp. 1202 (D.D.C.1983) (Richey, J.) ("NAACP II"), this Court, among other things, expanded the scope of NAACP I to include states other than West Virginia.

Apparently uncomfortable with the trend of litigation, and in compliance with an order of a federal district court in Virginia,⁷ the DOL determined to cure the problem in 1983 by promulgating a new rule. The new rule was intended to embody the average worker piece rate formula—rejected by this Court in NAACP I and NAACP II—and would have permitted growers to establish wage equality between foreign piece and hourly workers by requiring increased productivity. In an unpublished order dated September 8, 1983, this Court enjoined enforcement of the new rule, and directed growers to either pay the higher rates under NAACP I and NAACP II or place the difference into an escrow account. However, the Court of Appeals for the District of Columbia dissolved the injunction, and remanded the matter to this Court to determine the propriety of DOL's rulemaking procedure under the APA. NAACP v. Donovan, 737 F.2d 67 (D.C.Cir. 1984) ("NAACP III").

On remand, this Court approved the DOL's rulemaking procedure, and validated the DOL's average worker piece rate rule. As a result, while this decision was on appeal, the DOL permitted compliance with the new rule in growers' 1984 job clearance orders. However, after the job clearance orders were approved, and average worker piece rates paid thereunder, the Court of Appeals reversed the decision of this Court as to the validity of the DOL's rule under the APA. NAACP v. Donovan, 765 F.2d 1178 (D.C.Cir.1985) ("NAACP IV"). On remand, this Court reiterated the applicability of the prior rulings in NAACP I and NAACP II, and ordered that they be given prospective application. NAACP v. Brock, No. 82-2315 (D.D.C. August 14, 1985).⁸ As a result, average worker piece rates were paid to piece workers in 1984, but under an invalid rule.

The plaintiffs in this action (the Growers) were never parties to any of the ltigation that took place in this Court.

In 1985, the Growers filed their job clearance orders with the DOL, promising to pay the proportional piece rate in the event the Court of Appeals and this Court determined that such payments would ultimately be appropriate.⁹ The growers subsequently submitted letters to the DOL stating that they would pay the proportional piece rates "under protest" because:

The growers understand that, unless they execute these documents, their job orders will not be accepted by the Department of Labor for recruitment of United States workers nor will the growers' certifications for temporary foreign labor certifications be approved. We further understand that the Department of Labor will not accept a statement of protest on the face of the job order and therefore that a separate letter is the proper vehicle for entering such a protest.

Accordingly, you are hereby advised that the growers in no way waive their right to challenge the contents of this amendment, administratively or in the courts, and, if successful, the growers reserve the right to amend their job orders accordingly.

Pl.Comp. at ¶ 33. In fact, following this Court's assertion of the continuing validity of NAACP I and NAACP II on August 14, 1985, the Growers did not pay the proportional piece rate. Instead, when reminded of their obligations to do so, the Growers filed this suit.¹⁰

With this action, the Growers specifically challenge, under the APA, the DOL's actions in seeking to enforce the payment of the higher wage rate in 1985. The Growers contend that the DOL's actions in requiring adherence with NAACP I and NAACP II in 1985 were "arbitrary, capricious, contrary to law, and an abuse of discretion." As a practical matter, of course, the Growers' broader goal is to challenge the accuracy and continuing validity of this Court's rulings in NAACP I and NAACP II. Excusing themselves from the direct mandate of these rulings by virtue of the fact that they were not parties to the litigation, the Growers seek a declaration from this Court that the DOL's...