Guerrero v. Garza, 75-C-399.

• Decision Date: 09 August 1976
• Docket Number: No. 75-C-399.,75-C-399.
• Citation: 418 F. Supp. 182
• Parties: Nazario GUERRERO, on behalf of himself and all others similarly situated, Plaintiffs, v. Ramiro GARZA, Jr., et al., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

418 F. Supp. 182

Nazario GUERRERO, on behalf of himself and all others similarly situated, Plaintiffs, v. Ramiro GARZA, Jr., et al., Defendants.

No. 75-C-399.

United States District Court, W. D. Wisconsin.

August 9, 1976.

COPYRIGHT MATERIAL OMITTED

John F. Ebbott and Thomas C. Hochstatter, of Milwaukee Legal Services, Inc., Milwaukee, Wis., for plaintiffs.

Herman Grant, Regional Solicitor, U. S. Dept. of Labor, by William C. Posternack, Chicago, Ill., for federal defendants.

Lee R. Atterbury, Columbus, Wis., for the Garzas (defendants).

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This is a civil action for declaratory, injunctive, and monetary relief. Plaintiff, a migrant farmworker, alleges that defendants have violated the Farm Labor Contractor Registration Act.

The complaint alleges: Plaintiff is a migrant farmworker. He represents a class of migrant and seasonal farmworkers who have migrated or will migrate to Wisconsin as a result of their recruitment by farm labor contractors. The defendants Garza are farm labor contractors who, for a fee, recruit, solicit, and furnish migrant workers for agricultural employment. In January or February of 1975, defendant Ramiro Garza, Jr., spoke to plaintiff by phone in Del Rio, Texas and told him that he and four family members could work at the Larsen Company plant in Cambria, Wisconsin. Defendant Ramiro Garza, Jr. told plaintiff that the work would begin "when the peas come in." Defendant Ramiro Garza, Jr. failed to give a specific starting date; did not disclose the duration of the proffered employment; did not disclose information as to transportation arrangements, insurance benefits, wages; did not disclose whether he would charge for recruiting plaintiff and his family; did not give plaintiff a written statement of the terms and conditions of employment; did not tell plaintiff that housing would not be provided him; and did not tell plaintiff whether or not he was a registered farm labor contractor. Defendant Ramiro Garza, Jr. was recruiting without a certificate of registration. On the same day plaintiff went to Audaz Garza's house and discussed with her his conversation with Ramiro Garza, Jr. She did not contradict any statements made by Ramiro Garza, Jr., and did not state that Ramiro Garza was not a registered farm labor contractor. She told plaintiff there was a chance he could start work early at the Larsen Company plant in Cambria, Wisconsin. On June 24, 1975 plaintiff arrived at the Larsen Company migrant camp in Cambria, Wisconsin with five family members. Until July 4 or 5, plaintiff and his family waited to be given housing and a job. During the first five days they were told by Zulema Garza that she had jobs available but no housing. On July 4 or 5, 1975 defendant Ramiro Garza, Jr. told plaintiff and his family that he could not give them a job. On July 14, 1975 plaintiff filed a complaint against Ramiro Garza, Jr. with the Wage and Hour Division of the United States Department of Labor. As of the date on which this action was filed, August 28, 1975, no action had been taken on that complaint. Under the Farm Labor Contractor Registration Act, 7 U.S.C. § 2041 et seq., the federal defendants have a duty to plaintiff and the class he represents to monitor and investigate the activities of farm labor contractors. The federal defendants have failed to monitor the activities of the Garzas and, despite complaints of plaintiff and others, have failed to promptly investigate and take action against them; and this failure to monitor, investigate, and take action is part of a pattern and practice of the federal defendants to enforce the Farm Labor Contractor Registration Act and perform their duties under it.

The federal defendants have moved to dismiss this action as to them on the grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. They have accompanied their motion with the affidavit of Jerome Estoch, Area Director of the Wage and Hour Division, Department of Labor. Plaintiff has submitted an affidavit, as have plaintiff's counsel and Mary Gundrum, employee of the Migrant Component of Milwaukee Legal Services, Inc.¹ It is to this motion that the present opinion and order are directed.

The Farm Labor Contractor Registration Act 7 U.S.C. § 2041 et seq.

The purpose of this Act is to protect migrant workers from unscrupulous contractors who take advantage of their superior bargaining position by exploiting the workers in various ways. 7 U.S.C. § 2041 and Senate Report No. 93-1295.² To this end, the Act requires that all such contractors be licensed, one of the conditions of certification being proof that the transportation and housing provided by the contractor meet applicable state and federal health and safety standards. 7 U.S.C. § 2044. Among other requirements of the Act are that contractors make certain information known to the workers at the time of recruitment and in writing, and that they record and make available to the workers certain financial information during their employment. 7 U.S.C. § 2045.

The Secretary of Labor is charged with enforcing the Act. 7 U.S.C. § 2046 provides that the Secretary "may investigate and gather data with respect to matters which may aid in carrying out the provisions of this Act", that where a complaint is filed charging a violation of the Act, the Secretary "may investigate and gather data respecting such case;" and that he "shall monitor and investigate activities of farm labor contractors in such manner as is necessary to enforce the provisions of this Act."

The sanctions provided in the Act for use by the Secretary consist of the following: After notice and a hearing, the Secretary may refuse to issue or may revoke or suspend a certificate of registration if he finds that the contractor has violated the Act. 7 U.S.C. § 2044(b). Upon a willful and knowing violation of the Act there shall be imposed a criminal penalty consisting of a fine or imprisonment or both; the Secretary may also impose a civil monetary penalty for a violation of the Act. 7 U.S.C. § 2048(a) and (b). Finally, where the Secretary determines that the Act has been violated he may petition a federal district court for injunctive relief. 7 U.S.C. § 2050a(c).

The Act also permits persons aggrieved by a violation of the Act to bring a private action for damages in federal court. 7 U.S.C. § 2050a(a).

Subject Matter Jurisdiction

I begin with the inquiry whether the jurisdictional requirements of the Administrative Procedure Act (5 U.S.C. §§ 701-706) are satisfied.³ Section 701(a) permits judicial review unless it is precluded by statute or unless agency action is committed to agency discretion by law.

It is defendants' position that the Act gives the Secretary of Labor total discretion in enforcement and that therefore judicial review is precluded. Defendants rely on the use of the word "may" in connection with the Secretary's authority to investigate and in connection with the various sanctions. Also, defendants argue that although the Act states that the Secretary "shall monitor and investigate," it also states that he shall do so only "as necessary for the enforcement of the act," and this last phrase, it is said, gives the Secretary total and unreviewable discretion.

The permissive terms in the Act to which defendants refer do not constitute an express prohibition of review. Barlow v. Collins, 397 U.S. 159, 165-6, 90 S.Ct. 832, 25 L.Ed.2d 192 (1969). Therefore, there is a presumption of reviewability and the defendants bear the heavy burden of overcoming this presumption with clear and convincing evidence that Congress intended to preclude judicial review. Barlow v. Collins; Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975). Defendants have offered no evidence of such Congressional intent, and my review of the statute's purpose and history reveals none; rather it reveals that Congress intended to protect a class of persons of which plaintiff claims to be a member, and this intent in itself gives rise to the inference of reviewability. Barlow v. Collins, 397 U.S. p. 167, 90 S.Ct. 832.

The statutory exception for matters committed to agency discretion is a narrow one and is "applicable in those rare instances where `statutes are drawn in such broad terms that in a given case there is no law to apply.'" Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). It is not applicable where, as here, the statute contains specific criteria by which noncompliance with the Act can be determined and where "the statute indicates with precision the measures available to enforce the Act." Adams v. Richardson, 156 U.S.App.D.C. 267, 480 F.2d 1159 (1973). It is peculiarly within the power of the judiciary to interpret a statute which gives an agency the power to act, in order to permit the judiciary to determine whether the agency has correctly construed its obligations under the statute. Barlow v. Collins; Adams v. Richardson; Michigan Head Start Directors Association v. Butz, 397 F.Supp. 1124 (W.D.Mich.S.D. 1975); see also Alexander v. Brennan, 74-761 (D.C.Dist. Jan. 30, 1976).

Standing

I now consider whether plaintiff has standing to bring this action against the federal defendants.⁴

Under the A.P.A.⁵ a person has standing to challenge agency action if the interest asserted is arguably within the zone of interests to be protected by the statute in question and if the challenged action has caused plaintiff injury in fact. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

As I read the complaint, plaintiff is challenging these types of inaction⁶ by the agency: (1) the failure to monitor and investigate on its own initiative the activities of the Garzas and other contractors; (2) the failure to apply sanctions to the Garzas and other contractors; and (3...