Rogers v. Larsen

• Decision Date: 14 May 1976
• Docket Number: Civ. No. 75/169.
• Citation: 411 F. Supp. 122
• Parties: Alfred ROGERS and Rupert Lespeare, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. Jean D. LARSEN, Individually and as Acting Commissioner of Labor of the Virgin Islands of the United States, et al., Defendants.
• Court: U.S. District Court — Virgin Islands

411 F. Supp. 122

Alfred ROGERS and Rupert Lespeare, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. Jean D. LARSEN, Individually and as Acting Commissioner of Labor of the Virgin Islands of the United States, et al., Defendants.

Civ. No. 75/169.

District Court, Virgin Islands, D. St. Thomas and St. John.

February 20, 1976.

As Amended May 14, 1976.

James L. Hymes, Grunert, Stout, Hymes & Mayer, St. Thomas, Charlotte Amalie, V. I., for plaintiffs.

Julio A. Brady, U. S. Atty., U.S. Dept. of Justice, Verne A. Hodge, Atty. Gen., Dept. of Law, St. Thomas, Charlotte Amalie, V. I., for defendants.

MEMORANDUM OPINION

CHRISTIAN, Chief Judge.

This action was commenced on March 14, 1975, when Plaintiffs Alfred Rogers and Rupert Lespeare, nonimmigrant aliens present in the Virgin Islands pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii), filed suit for mandatory, declaratory and injunctive relief. Specifically, inter alia, they sought a declaration that 24 V.I.C., Chapter 6 and the amendments thereto — but primarily 24 V.I.C. § 129, is unconstitutional as in conflict with the Fifth and Fourteenth Amendments to the United States Constitution, and contrary to the Revised Organic Act, 48 U.S.C. § 1406g, as amended. They also sought to enjoin the application of 24 V.I.C., Chapter 6 to themselves and others similarly situated and to mandate that the Defendants cease to enforce 24 V.I.C., Chapter 6 against them. Plaintiffs further sought a declaration that Provision 8 in Form 1-320B, the required agreement between employers and the Immigration and Naturalization Service for the hiring of nonimmigrant alien labor, is "null, void and unenforceable," and an injunction from enforcing Provision 8 against Plaintiffs. Finally, Plaintiffs sought to enjoin enforcement of 8 U.S.C. § 1251 and the regulations thereunder, against them and others similarly situated.

On April 24, 1975, Defendant Jean Larsen, Acting Commissioner of Labor of the Virgin Islands, filed an answer denying, inter alia, that the above-mentioned statutes and provisions were unconstitutional as applied, or that Plaintiff Rogers had been terminated from employment pursuant to 24 V.I.C. § 129.

On May 9, 1975, a hearing was held on Plaintiffs' motion for a preliminary injunction. No decision on the matter was rendered, since it was determined that an evidentiary hearing should be held. Such hearing was set for June 5, 1975. The Court also deferred decision on Plaintiffs' motion to certify the suit as a class action.

On May 23, 1975, Defendants, Attorney General of the United States, Commissioner of Immigration and Naturalization and Director of the Virgin Islands Alien Certification Office hereinafter, the Federal Defendants, moved for an order dismissing the action as to them on the ground of lack of jurisdiction of the District Court "over any matters herein pertaining to the immigration laws, the only one in which they are involved". Basically, the Federal Defendants argued that the Plaintiffs had yet to exhaust their administrative remedies, that certain decisions on the part of the immigration officials were discretionary and hence unappealable, and that the Court of Appeals, rather than the District Court, has jurisdiction over pending deportation proceedings.

Also on May 23, 1975, Defendant Jean Larsen filed a motion to dismiss the complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the ground that Plaintiffs lacked standing to prosecute the cause. Defendant Larsen submitted affidavits with the motion tending to show that Plaintiffs were dismissed from their employment due to completion of their employer's "only major construction job and to a shortage of materials", and not to application of section 129. The affidavits further tended to show that Rogers' appeal from a decision of the Immigration and Naturalization Service granting him voluntary departure was presently pending, and that Lespeare's immigration status was secure since he had found another job and had been re-certified to remain in the territory.

On June 4, 1975, the United States Attorney filed a motion to quash a subpoena duces tecum which had been served upon Dante Rossi, officer in charge of the Immigration and Naturalization Service for the Virgin Islands and James St. John, Jr., Director of the Virgin Islands Alien Certification Office. Also on the same date, counsel for Plaintiffs submitted a motion to intervene on behalf of two nonimmigrant aliens, Casper Ephraim and Raphael Lockhart. The motion was supported by affidavits from each of these persons stating that they were fired from their jobs because their employers had been told to do so by the Virgin Islands Department of Labor in order that they could be replaced by citizens or permanent residents.

On June 5, 1975, an evidentiary hearing was held to determine whether a preliminary injunction should issue. At that hearing, this Court denied the motion to quash submitted by the United States Attorney. The Court dropped Plaintiff Lespeare as a party because the testimony adduced at the hearing satisfied the Court that he had not been fired pursuant to any application of section 129. The Court took under advisement the question whether Plaintiff Rogers should be dropped as a party. The motion of Casper Ephraim to intervene as a party plaintiff was heard and denied. The motion of Rafhael Lockhart to intervene as a party plaintiff was heard and granted. The motion to dismiss the entire matter on the ground that Plaintiffs had no standing to sue was denied for the reason that Rafhael Lockhart was found to have standing.

After the hearing, this Court entered an order directing that Alfred Rogers be dropped as a party for the reason that he had not been terminated from his employment pursuant to section 129.

At this juncture, the initial question for determination is whether the case against the Federal Defendants should be dismissed. I conclude that the question must be answered in the affirmative for the following reason: The only Plaintiff remaining in this suit is Rafhael Lockhart. His affidavit, dated May 22, 1975, states that he was employed by Litwin Corporation on St. Croix until April 18, 1975. At that time, he was terminated

for the reason that he is a non-resident worker as defined in Title 24, Chapter 6 of the Virgin Islands Code and as is more particularly stated in the letter of termination received from Litwin Corporation . . .

Id. The letter to Lockhart from the Litwin Corporation, dated April 5, 1975, and signed by J. E. Rhorer, Project Superintendent, read as follows:

Pursuant to Title 24, Chapter 6 of the Virgin Islands Labor Code, the Litwin Corporation is required to replace Non-Resident workers with qualified Resident Workers. We are hereby advising you that your position will be filled by a U.S. Citizen/Permanent Resident, and, in accordance with the Virgin Islands law, we are giving you fourteen (14) days notice of termination. Your last day of employment on this job will be April 18, 1975.

Neither Lockhart's affidavit nor any other material submitted to this Court presently alleges or otherwise demonstrates that, once Lockhart was dismissed, he became subject to deportation proceedings. His sole allegation is that he was dismissed from his job pursuant to section 129. This being the case, he has not stated a claim against any of the Federal Defendants, and, accordingly, the suit against them must be dismissed. In reaching this decision I need not consider the complex arguments raised in the brief submitted in support of the Federal Defendants' motion to dismiss. Indeed, this decision should not be considered as reflecting upon the merits of those arguments.

Presumably, in light of the foregoing, a second evidentiary hearing could be held to determine whether the allegations contained in the affidavit of Rafhael Lockhart are true, and then, whether an injunction should issue. However, I have concluded that such a hearing would serve no purpose. Both sides have thoroughly briefed the legal issues pertaining to 24 V.I.C. § 129, and I am ready to hold, as a matter of law: 1) that this statute is not unconstitutional on its face or as applied, and 2) that Provision 8 of Form 1-320B is lawful. Therefore, even if Lockhart's allegations are true, he has stated no claim against the remaining Defendant Jean Larsen, and the complaint must be dismissed.

My reason for arriving at the above-stated conclusion is a simple one: the issue of the constitutionality of 24 V.I.C. § 129 was already decided in Gannet Corporation v. Stevens, 282 F.Supp. 437 (D.V.I.1968). The principal question before Judge Maris in that case was whether 24 V.I.C. § 125 et seq. was

invalid in that (1) Congress has fully legislated with respect to importing alien nonresident workers to the exclusion of territorial legislation such as this, and (2) that the statute fails to give equal protection of the laws and is discriminatory.

Id. at 440. These are precisely the major contentions raised in the complaint in the instant case.

Judge Maris reached the following conclusion concerning the preemption question:

. . . the Act of 1964 and its amendments 24 V.I.C. § 125 et seq. . . . were designed to provide the procedure for the performance of the duty delegated to the United States Employment Service, and through it to its affiliate, the Virgin Islands Employment Service, to certify, with respect to nonimmigrants sought to be admitted pursuant to section 214 of the Immigration and Nationality Act of 1952, that unemployed persons capable of performing such services or labor cannot be found in the Virgin Islands and that such employment will not adversely affect the wages and working conditions of workers in the Virgin Islands similarly employed. Immigration Regulations, § 214.2(h)(2)(ii), 8 CFR (Rev. Jan. 1, 1967) p. 43. The concurrent cooperation required of the

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