Western Colorado Fruit Growers Ass'n v. Marshall
| Decision Date | 11 July 1979 |
| Docket Number | Civ. A. 78-A-1022. |
| Citation | 473 F. Supp. 693 |
| Parties | WESTERN COLORADO FRUIT GROWERS ASSOCIATION, INC., a Colorado Corporation, Plaintiff, v. F. Ray MARSHALL, United States Secretary of Labor, Floyd Edwards, Regional Administrator of United States Department of Labor (Region VIII), United States Immigration and Naturalization Service, Defendants. |
| Court | U.S. District Court — District of Colorado |
COPYRIGHT MATERIAL OMITTED
Nelson, Hoskin, Groves & Prinster by John W. Groves, Grand Junction, Colo., for plaintiff.
Joseph F. Dolan, U. S. Atty. by James P. Gatlin, Asst. U. S. Atty., and Donald R. McCoy, Denver, Colo., for defendants.
This matter comes before me now on plaintiff's motion to dismiss defendants' counterclaim. Briefs have been filed and neither party has requested oral argument. This case is one of two fiercely contested lawsuits involving plaintiff's efforts to obtain migrant labor for seasonal work in the western Colorado fruit orchards. See Jones v. Edwards, Civ. Action No. 79-A-337 (D.Colo., Memorandum Opinion and Order filed April 24, 1979). Plaintiff is a voluntary association of fruit growers situated on Colorado's western slope. Defendant Marshall is the Secretary of Labor; Defendant Edwards is the Regional Administrator for the Department of Labor Employment and Training Administration; Defendant Immigration and Naturalization Service is an agency in the Department of Justice.
Pursuant to the Wagner-Peyser Act, 29 U.S.C. § 49, et seq., the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq., and related regulations, an employer may file a clearance order (which is a job offer) with the Department of Labor. If approved, Labor officials aid in matching available employees with the employer. This matching takes place on a local and statewide level through the services of state officials, then through an interstate clearance system, and, if sufficient domestic labor is unavailable and certain other conditions are met, the federal government recruits alien labor. The workings of this system are set out in greater detail by the courts in Frederick County Fruit Growers' Association, Inc. v. Marshall, 436 F.Supp. 218 (W.D.Va.1977), The Elton Orchards, Inc. v. Brennan, 508 F.2d 493 (1st Cir. 1974), and Jones v. Edwards, supra.
Plaintiff filed clearance orders for 345 workers with Edwards' office in Denver on September 28, 1978. Rural Manpower Job Offer and Temporary Labor Certification Assurances, supplementing the clearance orders, were filed on October 2, 1978. By letter of the same date Edwards rejected the proffered clearance orders as deficient and refused to certify a shortage of domestic labor. Plaintiff then filed this action.
The complaint sought an injunction forcing defendants Marshall and Edwards to certify a shortage of domestic labor, thereby enabling the Immigration and Naturalization Service (INS) to admit alien labor. After a hearing on October 2, Edwards commenced recruitment of domestic labor based on the aforementioned clearance order and manpower assurances. As detailed more fully, infra, this recruitment effort led to alleged violations by the plaintiff of the job offer, assurances, and related regulations. Defendants filed a counterclaim seeking redress for those alleged violations. The motion for a temporary restraining order was ultimately denied without prejudice. The fall, 1978, harvest season has long since passed and plaintiff's complaint is now moot. See Plaintiff's Pretrial Statement at 5, ¶ 5(a)(1).
The counterclaim is still pending, however, and is the subject of the instant motion to dismiss. For purposes of this motion I must assume the facts as alleged by the defendants to be true. Defendants allege that plaintiff breached the terms of the clearance order and assurances and the terms of 20 C.F.R. Part 655 (1978), which govern such clearance orders and assurances. More specifically, plaintiff allegedly failed to advance transportation and subsistence costs,1 failed to employ workers recruited at government expense, failed to provide housing for some workers, failed to pay the guaranteed hourly wage of $3.36, failed to employ the workers for at least 75% of the contract period, employed foreign workers on terms more favorable than those for domestic workers, and failed to cooperate with the employment service system established by the Department of Labor under 29 U.S.C. § 49, et seq.
As a result defendants assert one counterclaim which includes essentially three claims for relief, as follows: $35,806.95 in costs incurred by the Secretary of Labor to transport, house, feed, and pay the workers plaintiff did not transport, house, feed, or pay; an undetermined sum of money in overdue wages owing to workers who were paid less than $3.36 per hour; and an injunction prohibiting non-compliance or interference with defendants' administration of the statutes, 8 U.S.C. § 1182, et seq., 29 U.S.C. § 49, et seq., and related regulations.2 Plaintiff has moved to dismiss the first and second, or monetary, counterclaims for failure to state a claim on which relief can be granted, lack of standing, failure to join indispensable parties, and because defendants are not the real parties in interest. Plaintiff seeks dismissal of the third, or injunctive, counterclaim insofar as it rests on plaintiff's alleged failure to comply with 20 C.F.R. § 655 (1978) because the regulation is allegedly not reasonably related to the accomplishment of the purposes of the statute under which it was promulgated. I will treat each contention separately.
In their pretrial statement and at the pretrial conference defendants described their claim for $35,806.95 as a claim for losses due to plaintiff's breach of the job offer, or contract, and for losses due to plaintiff's violation of 20 C.F.R. §§ 655, et seq. Each aspect of this description warrants separate consideration.
Plaintiff's clearance order is essentially an offer for a contract of employment. The offer is accepted by going to the western slope and reporting to "the Mobile Trailer Office—Mr. Hugh McDonnell —Eckert, Co.—XXX-XXX-XXXX" as per item 15 of the offer. By its terms the offer could be accepted only by "individual workers." Neither INS nor the Department of Labor are "individual workers" who could have accepted the offer. Secretary Marshall and Administrator Edwards are individuals who could have accepted the offer, but the counterclaim contains no allegation that they did or tried to do so. Indeed, the counterclaim contains no allegations which are in any way susceptible of a construction which might be read as establishing a contractual relationship between plaintiff and any of the defendants. Department of Labor regulations, moreover, preclude the creation of any such contractual relationship:
Nor does any job order accepted or recruited upon by the Employment Service constitute a contractual job offer to which the Employment and Training Administration or a state agency is in any way a party.
20 C.F.R. § 653.108(b)(1) (1978).
I find that the counterclaim fails to state a claim in contract on which defendants might be entitled to reimbursement for $35,806.95.
As to the violations of 20 C.F.R. Part 655 (1978), the regulations do not expressly provide defendants with the cause of action asserted. Rather, the defendants would have this court imply a right to sue for damages due to the alleged regulatory violations.
In Gomez v. Florida State Employment Commission, 417 F.2d 569 (5th Cir. 1969), the court held that migrant workers who accept private employment through the interstate clearance system have an implied federal cause of action against both the employers and the government employment agency employees when the minimum standards set forth in the clearance order and regulations are not met. The court left no doubt that the key reason for its holding was one of the Wagner-Peyser Act's statutory purposes—that of protecting migrant laborers. 417 F.2d at 572. Again, none of the defendants are migrant workers and none of the defendants accepted employment through the interstate clearance system. The rationale of the Gomez case is wholly inapplicable to the instant situation. Other cases cited by defendants, see, e. g., Jenkins v. S & A Chaisson & Sons, Inc., 449 F.Supp. 216 (S.D.N.Y.1978) (), are similarly cases where the courts have allowed the workers a private cause of action for damages.
The Supreme Court has set forth standards for deciding when and under what circumstances causes of action may be implied in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). See also Cannon v. University of Chicago, ___ U.S. ___, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), and Kodish v. United Airlines, Inc., 463 F.Supp. 1245 (D.Colo.1979). I question whether the public defendants, counterclaiming here in their official capacities and not as private citizens, can even bring themselves within the ambit of the Cort court's standards for implying private causes of action. I pass that question, however, because I find that the Cort test leads inexorably to only one conclusion: no right of action may be implied on the facts of this case.
Cort requires analysis of four questions. First, do defendants fall within the class of persons whom the statute was intended to benefit? Second, is there any indication of legislative intent? Third, is an implied cause of action consistent with the underlying purposes of the legislative scheme? Fourth, is the cause of action one traditionally relegated to state law? 422 U.S. at 78, 95 S.Ct. 2080. Each will be addressed in order.
1. I find that the Secretary of Labor, the Employment and Training Administrator, and the INS are not intended beneficiaries of the interstate clearance system. The system is designed to bring two parties together: employers who have jobs and employees who need jobs. See Petersen v....
To continue reading
Request your trial
-
Villalobos v. North Carolina Growers Ass'n
...processing clearance order ("clearance order") is "essentially an offer for a contract of employment," Western Colorado Fruit Growers Ass'n v. Marshall, 473 F.Supp. 693, 696 (D.Colo.1979), circulated through the interstate service system, which includes the regional offices of the ETA.2 The......
-
Littell v. Hous. Indep. Sch. Dist.
...on the complaint" (citing 11A Wright & Miller, Federal Practice and Procedure 2d § 2955 (1995) ) ); W. Colo. Fruit Growers Ass’n, Inc. v. Marshall , 473 F.Supp. 693, 699–700 (D. Colo. 1979) (agreeing that the requested injunction might violate Rule 65(d) but explaining that "[t]he equitable......
-
Bojorquez-Moreno v. Shores & Ruark Seafood Co.
...order which reflect DOL requirements become a part of the employment contract as a matter of law.”); W. Colorado Fruit Growers Ass'n, Inc. v. Marshall, 473 F.Supp. 693, 696 (D.Colo.1979) (“clearance order is essentially an offer for a contract of employment”).However, as S & R observes, cit......
-
Surrillo v. Drilake Farms, Inc.
...decided was whether the court had jurisdiction of the subject matter. 4 The defendants also cite Western Colorado Fruit Growers Association, Inc. v. Marshall, 473 F.Supp. 693 (D.Colo.1979), wherein the government sued Colorado fruit growers for failure to transport and to employ domestic wo......