Bojorquez-Moreno et al v. Sepulveda-Cabrera et al

Filing 33

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/17/15.(tdai, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division AGUSTIN BOJORQUEZ-MORENO, et al., Plaintiffs, Civil Action No. v SHORES & COMPANY, 3:14cv670 RUARK SEAFOOD INC., et al., Defendants. MEMORANDUM OPINION This 12(c) matter is before the Court on MOTION FOR JUDGMENT ON THE PLEADINGS the Defendants' (Docket No. RULE 11). For traveled from the reasons stated below, this motion will be granted. BACKGROUND The Mexico Plaintiffs to Virginia work visa program. work consisted of are to five work Mexican for the (Compl. SI 1.) shucking oysters citizens Defendants 48-50.) under the H-2B Specifically, this temporary found in River in Urbanna, Middlesex County, Virginia. 42, who the Rappahannock (Compl. SISI 17-19, The nature of the job is to remove oysters from their shells by using a shucking knife to pry open the shell and cut the oyster loose from it. The H-2 work visa program allows an employer in the United States to labor import of a temporary ("DOL") certifies in United the foreign guest nature that there States to two the seasonal authorizes the U.S. perform Department insufficient the unskilled of available job. See 8 Labor workers U.S.C. § SI 25.). The H-2 program is divided the H-2A program authorizes employment labor to categories; separate visa agricultural are the perform 1101(a) (15) (H) (ii) ; (Compl. into if workers or of foreign services, employment of workers while foreign to H-2B the perform program to perform workers nonagricultural work. See 8 U.S.C. § 214.2(h) (1) (ii) (D) . The Plaintiffs in this case were admitted to the United States connection performed with for § 1101 (a) (15) (H) (ii) ; 8 CFR under H-2B visas. the oyster Defendants (Compl. shucking pursuant work to that their Plaintiffs have asserted four counts against SISI 7-12.) In Plaintiffs H-2B visas, Defendants related to a purported failure to properly pay Plaintiffs' minimum wages and to provide Specifically, the Plaintiffs allege: wage provisions of the violations of Protection Act under appropriate state law the of and (Count II) ; (3) III); work hours. violations of the minimum Fair Labor Standards Act Migrant (Count (1) number Seasonal (Count I); Agricultural (2) Worker a breach of employment contract and (4) a third-party beneficiary claim for breach of contract under state law (Count IV). DISCUSSION I. Legal Standard When deciding a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c), the Court applies the same standard that is applied when ruling on a motion to dismiss pursuant to Fed. R. Civ. 278 P. 12(b)(6). F.3d 401, 127, 139 405-06 (4th allegations Burbach Broad. (4th Cir. Cir. in the Co. 2002); 2009) . The non-moving v. Elkins Radio Corp., Walker v. Court party's must Kelly, assume pleadings 589 F.3d that true are the and construe all facts in the light most favorable to the non-moving party. Burbach Broad. Co., 278 F.3d at 406. Judgment should be entered in favor of the movant when the pleadings "fail to state any cognizable claim for relief, be decided Co., 414 as a F. matter Supp. of 2d and the matter can, law." 567, Thomas 570 (E.D. v. therefore, Standard Va. 2006) Fire Ins. (citation omitted). II. Count I: In Fair Labor Standards Act Count I, Plaintiffs Ruark Seafood Company, Rufus wage H. Ruark, provisions Jr., of U.S.C. § 206(a), every compensable Inc., allege Fair Defendants, Urbanna Seafood Company, (collectively, the that Labor "S&R") of labor Standards performed Inc., & and violated the minimum Act by failing to pay Plaintiffs at hour Shores ("FLSA"), 29 least $7.25 for during each workweek they were employed and by purchase their work tools. S&R requests that S&R's requirement limitations unless plaintiff a willfully. this claim are subject Williams for claims can See 29 U.S.C. Co. , 486 U.S. 128, to the Seafood (E.D.N.C. 135 of 2011). be that § 255(a); 2-year (Defs.' that occurring (Pis.' more Resp. than at at 5-6.) The two years, defendants McLaughlin v. Inc., statute of three is years In part FLSA is the limitations Arapahoe, 3. ) in acted Richland Shoe ("Ordinary violations of the FLSA If willfulness the only Mem. under the prove (1988) dismissed period."); 776 their F. shown, limitations is increased to three years. contest Plaintiffs (Compl. SISI 59, 61.) based on the statute of limitations. statute of that Supp. then Id. response, 2d the v. 117, 127 statute of Plaintiffs do not limitations before Gaxiola bars the date violations of Plaintiffs filing. "clarify" that they do not seek unpaid wages or liquidated damages for any violations of the FLSA committed before September 30, 2011. Defendants point out that this "clarification" is not Id. found in the Complaint and reiterate that Count I should be dismissed to the extent it seeks September 30, 2011. Because found in the the recovery occurring prior to (Defs.' Reply at 2.) limitation Complaint, will be granted. for violations acknowledged the motion to by Plaintiffs dismiss Count I is in not part III. Count II: Migrant and Seasonal Agricultural Worker Protection Act In Count 1822(c), II, Plaintiffs 29 U.S.C. § allege 1821(d)(2), S&R and 29 violated U.S.C. 29 U.S.C. § 1821(a) Migrant and Seasonal Agricultural Worker Protection Act and that each of these meaning of 29 U.S.C. violations were § 1854(c)(1). "intentional" of § the ("AWPA") within the (Compl. SISI 66-70.) S&R contends that the protections of the AWPA do not apply to Plaintiffs apply to for H-2B two visa primary reasons: workers; and (1) (2) the and therefore does not of (Defs.' 10-13.) AWPA. several at 6, definitions statutory Mem. of fall does not shucking oyster nonagricultural the AWPA is within the S&R also "agricultural" purview cites that appear to exclude the process of shucking oysters. to would (Defs.' Mem. at 7-9.) Plaintiffs who respond that the AWPA not only applies to perform agricultural Revenue Code 203(f), in a but ("IRC"), definition handling, planting, freezing, or agricultural state." 26 U.S.C. also provides third grading or labor of drying, prior § 1802(3). defined § 3121(g), coverage horticultural 29 U.S.C. as for workers packing, who Internal 29 U.S.C. are for in its § engaged employment": packaging, delivery commodity the and FLSA, "agricultural to in workers "the processing, storage of any unmanufactured Plaintiffs argue that this third, broader, category can "nonagricultural" under shucking performed by support this extend to H-2B workers immigration law) Plaintiffs. contention, and (Pis.' Plaintiffs (even Resp. cite (11th Cir. regulatory 2003), oyster 3-12.) to established in Morante-Navarro v. T&Y Pine Straw, 1163 at deemed the covers if the provisions that incorporate "test" Inc., and point to various federal, seafood To 350 F.3d state, into and their definitions of an "agricultural commodity." S&R's first contention is a categorical one: does not only to the apply "migrant H-2B States to alien who an perform nature." v. Frog (E.D.N.C. 2009) of while H-2B the view, to the is See 8 one held coming CFR Seafood, ("The foreign § 29 by the AWPA U.S.C. the of to 644 F. perform authorizes perform non-agricultural S&R points out that 1801, to a the Supp. the United see the To of or also 696, 702 seasonal agricultural employment work."). 2d and only temporary 214.2 (h) (1) (ii) (D) ; Inc., applies Plaintiffs, temporarily work § H-2A program authorizes workers program because workers," nonagricultural Island employment workers agricultural is to workers visa which seasonal n.2 H-2B visa, "applies Garcia to that the AWPA work, foreign support this the AWPA expressly excludes coverage for H-2A workers and argues that H-2B workers are not mentioned because such visas are, by definition, "nonagricultural." This categorical argument not entirely convincing. the AWPA and has First, Immigration and considerable the Plaintiffs point Nationality "agricultural" employment differently. "nonagricultural" for purposes of Act Thus, the does not but is out that ("INA") define a worker could be H-2B agricultural for purposes of AWPA coverage. Plaintiffs, force, designation, Therefore, but say the the absence of an express exclusion for H-2B workers reflect workers are not workers are. any redundancy, excluded The from but coverage Plaintiffs then rather under cite means the various that AWPA H-2B as H-2A decisions in which courts have permitted H-2B workers to enforce their rights under the AWPA. Inc., 497 F.3d certification at 1172 Supp. workers No. H-2B (11th Cir. workers' AWPA AWPA v. Eller claims); Trees, (affirming 2007) and Sons class Morante, 350 Tenn. claims); 2008 to by copy cite a of 2009) of protective WL 4449973 workers F.3d sister district) AWPA 7 order v. of H-2B case with Forestry, 2008) (requiring under AWPA). The admittedly been require registration in 652 Express (that have that Inc., employer (E.D. La. damages to regulations its (holding Recinos-Recinos H-2B pay Superior Forestry Service, violation 05-1355, invalid a (M.D. for Plaintiffs also submit 1214 887 liable employers held Leon-Granados Rosiles-Perez v. 2d underlying Inc., of De (concluding that H-2B pine straw workers are covered by the AWPA); F. See an agent certificate to in conjunction with See 20 C.F.R. the filing § 655.8(b), of an application for v. Perez, No. 3:12CV183/MCR/CJK, 2014 (N.D. Fla. Dec. 18, 2014) authority therefore, The rulemaking visas. held invalid by Bayou Lawn & Landscape Servs. legislative H-2B ("DOL under the lacks H-2B WL 7496045, program. The *6 engage to at in 2012 Rule, must be vacated."). parties also provide a mixed bag of statutory and regulatory definitions to demonstrate or refute the propriety of including within seafood commodity" or seafood "agriculture." "agriculture" referenced For the employment." AWPA's § 203(f), "products focus on expressly techniques § of the or bees, land-raised excludes of the definitions of definitions discuss, of growing, C.F.R. § products. "commodities are example, "the or poultry," 29 and harvesting" 780.112, The that "agricultural for fur-bearing animals, 29 "agricultural definition definition "cultivation, soil," an the to - two definitions raising of livestock, U.S.C. cites IRC own of within S&R FLSA and These definition processing example, in the in the FLSA which reflect definition produced by and a also industrial . . . or by uncultivated natural growth." 29 C.F.R. 780.112. Plaintiffs, "agricultural shellfish, on the commodity" such as the other hand, that Food have for cite several included Peace Act, definitions fish, the seafood, Trade Act of or of 1974, and the Child Nutrition Act sources demonstrate that Congress of 1966. These conflicting knows how to include within its definition if it so desires, but do not seafood necessarily shed light on whether Congress intended a process such as oyster shucking to fall within the purview of "agricultural employment" for purposes of the AWPA. Thus, history, the best resolution lies in the text, legislative and judicial interpretations of the AWPA itself. that analysis tells courts that, "[i]n construing statutes, primary goal is to give effect to congressional intent." States v. Hager, 721 F.3d 167, 134 (2014) S. Ct. F.2d 783, The look to 1936 787 inquiry but by step plain fail to in States, construing language 2013) to U.S. congressional the statute. United cert, denied, Co., that the 350 37, the words' F.3d 444 42 court "ordinary, 1167 (1979)). is to rely to advance their Morante at intent Plaintiffs reasoning in Morante Morante, 444 of recognize recourse common meaning." United (4th Cir. (citing NLRB v. Wheeling Elec. heavily upon the court's claim, 209 our (4th Cir.1971)). first the And, began contemporary, (citing In its so Perrin doing, Eleventh Circuit relied upon the following for guidance: Webster's Dictionary defines "agriculture" broadly as "the science or art of the production of plants and animals useful to man and in varying degrees the preparation of the products for man's use and their v. the disposal (as by marketing)." Webster's Third New International Dictionary 44 (1986); see also Black's Law Dictionary 69 (7th ed. 1999) (agriculture is "the science or art of cultivating soil, harvesting crops, and raising livestock") ; 3 Am. Jur. 2d Agriculture § 1, at 768 (2002) (agriculture includes "preparing soil, planting seeds, raising and harvesting crops, . . . gardening, horticulture, viticulture, dairying, poultry, bee raising, ranching, riding stables, firewood operations, and landscape operations") . Morante, 350 F.3d at 1168. in common the ordinary meaning. approach. "the of these alone even the gathering, within "agriculture" This In fact, raking, fall usage Shucking oysters would not find home might and on the exclude Morante court baling, broad based definitions Plaintiffs' - which loading of of word's found that pine straw may agriculture" nonetheless questioned whether "the pine straw at issue in this case" could AWPA. constitute Morante, 350 an F.3d at "agricultural 1168. commodity" Thereupon, under the the Morante court moved to the history and purpose of the statute. The AWPA was Registration Act 1168 determining ("When apply, we look of preceded to 1963 the by the ("FLCRA") . to whom AWPA's Farm See Congress "undoubtedly intended" to original law - Morante, Contractor 350 intended predecessor, Contractor Registration Act of 1963[.]"). Labor the F.3d at act to the Farm Labor Although the AWPA was extend migrant worker protections, incorporating the 10 FLSA and IRC the definitions contained exemptions for seafood, Congress to the . . . changed its mind" land." Araiza-Calzada 5:13CV15-RS-CJK, Sept. and there is "no evidence that 2014 U.S. that v. Dist. agriculture was Webb's Seafood, LEXIS 127021, "limited Inc., *11-14 (N.D. No. Fla. 10, 2014). Unlike the AWPA's incorporated FLSA and IRC definitions, which "have been construed to mean traditional agricultural work performed *10 'on a farm,'" Araiza, (citing Morante, disclaimed by Resp. at the 6.), describing 350 AWPA's while to employment" regardless (5th Cir. Cir. ensure Bracamontes 1988); 1987) v. — are employment v. the FLSA reached See Co., F.2d (Pis.' verbs and of IRC those "agricultural Morante, 840 at been the location location. 843 have borrowed the AWPA Brock, which for their suit, in Weyerhauser Bresqal and definition the its as freezing, definition also agricultural farm that LEXIS 127021, F.2d 1163, 350 271, F.3d 275-76 1167-68 (9th ("The added language does refer to such functions as original amendment a basis activity of "packaging, processing, the as Dist. 1167), deemphasizing activities 1169; at third agricultural definitions, at F.3d Plaintiffs the 2014 U.S. covers the commodities. within derived the of or grading," which were not in agricultural "handling, These from the planting functions original — if definition [FLSA]. 11 labor. The [or] But drying" performed of the on of a agricultural inclusion of these words in the amendment would be redundant if the amendment were not intended to place emphasis on the activity — any handling of an 'agricultural deemphasize court the noted, protect horticultural location "it workers disregard or workers is of the activity."). inconceivable planting fruit planting fir commodity' that trees trees As Congress in on an a — and the Bresgal intended orchard, hillside, and is clear that activities the FLSA and IRC prongs of § 1802(3) the third," Bracamontes, linked to the first "and" rather than the ("The term service 3(f) or 843 F.2d or 840 activity 276, two through the 'agricultural within the use "or." employment' included section prior 3121(g) packing, to of Title packaging, delivery for 26 of 29 the and of third definition the conjunctive U.S.C.A. means § 1802(3) employment provisions the processing, storage of (29 U.S.C. handling, freezing, any in any section 203(f)), planting, or grading agricultural horticultural commodity in its unmanufactured state.") added). within still may be encompassed in F.2d at disjunctive "not fall[ing] of the Fair Labor Standards Act of 1938 drying, the to 1166. Although it is to when both groups suffer from the same clearly identified harm." at to or (emphasis The Araiza court argues that this shows the purpose of third definition was to ensure 12 that the definitions were not narrowly interpreted to apply to farms. LEXIS 127021, the inclusion of "downstream activity" verbs — such as "packaging, processing, to ensure production. See expansion the ("The of purpose aspects of 1295, definition (1) to act is the AWPA agricultural congressional was at agricultural (2) to F.2d products.1 intent 275 ("The 'coverage In activities the F.3d (citing S. Rep. other expanded performed downstream of these, at 1169 to all No. 93- words, in two the ways: regardless processing however, notion of of vertical 350 employment" to broaden the chain provide to Neither at the Morante, 6448). reach or grading" - has been along in agriculture.'") "agricultural and 840 plain[.]"); U.S.C.C.A.N. of freezing, vertically Bracamontes, of reach location, coverage commerce 1974 2014 U.S. Dist. at *16-17. In addition, read Araiza, an of of reflects "agricultural commodity" to the extent envisioned by Plaintiffs. Plaintiffs' derives the from strongest their Plaintiffs argument interpretation point to language establishes a judicial "test" for of in - or case so law. Morante they believe Specifically, that they claim determining whether an object is an "agricultural commodity" for the purposes of the AWPA. In 1 The amendments to the definition also removed the original statute's restriction to "interstate" commerce, allowing the law to reach intrastate activity. See Bresgal, 843 F.2d at 1167. This third change is not instructive to the interpretive question before the Court. 13 the closing lines of the Morante opinion, observed that, "[l]ike tree and mushroom compost, seedlings, pine straw the trees, is Eleventh Circuit evergreen boughs, produced by a natural process that can be - and was in this case - enhanced by manual labor and cannot intervention." be 350 put to F.3d at commercial 1172. Based Plaintiffs argue that any item that is (1) process, put (2) use without on this human language, produced by a natural can be enhanced by manual labor, and (3) to commercial use without human intervention is, cannot be therefore, an "agricultural commodity" under the AWPA. Plaintiffs' reasons. First, interpretation the Araiza the Eleventh Circuit, mandatory not test, any flatly kind of the which, as stated that a the for several district Morante "agricultural within court did commodity" but was "merely summarizing its reasoning," and held that LEXIS 127021, oyster shucking. at *22. Second, all Araiza, of the the Plaintiffs discuss land-grown products. notion of agriculture 1172 mark follow the Morante opinion as overarching the AWPA does not apply to Dist. court, is bound to authority, create misses (pine seedlings); Bracamontes seedlings, straw); the sea. See 840 F.2d Bracamontes, Bresgal, court, into 843 F.2d at which considered its 1166 examined opinion 14 the to be one drives the Morante, (trees). 350 276-77 of F.3d at (pine Third, planting a U.S. cases cited by Not at 2014 tree even the pine boundary case. tree See Bracamontes, 840 F.2d and of the either Lastly, the impossibly "water, "test" advocated expansive oil, 273-74 ("The question interpretations unreasonable results. as at by notion urged are Plaintiffs of is and a would "agriculture" host of close create an lead to and resources such other products" become "agricultural commodities" under the Plaintiffs' test. (Defs.' Mem. one plausible."). As the Defendants observe, diamonds, a could proposed at 5 n.l.) The plain text of the statute, its legislative history, and judicial decisions all counsel that neither shucking oysters nor those who definition to be shuck of oysters are agricultural expanded to include covered labor this or by the agricultural kind of of the Court to effect statutory interpretation. Congress to the contrary, true bounds of If the employment activity, Congress to do so by amending the statute. the place of AWPA. it is up is to It certainly is not such a change under the guise Absent explicit direction the Court concludes that, agriculture may be, the definition at the water's edge and precludes Plaintiffs' from whatever the likely stops claim. Hence, the motion to dismiss Count II will be granted. IV. Count In III: Count State III, Contract the Claim Plaintiffs apply for and secure H-2B visas allege that for Plaintiffs, 15 S&R offered to that S&R did so apply for labor certification under the H-2B visa program, and that an employment contract was created when Plaintiffs accepted S&R's offer by traveling from Mexico to Virginia and performing work. According contract included satisfy so the DOL to that under terms are: the Plaintiffs, obligations S&R could the (1) H-2B S&R receive visa failing to the H-2B regulations; that (2) the the terms told labor program. of the pay (Compl. Plaintiffs sum, requirements (Compl. failing to minimum it to is wages the which S&R To support that theory, provide as 1 40 certificates) contracts. Fruit aff'd, 73.) from Those hours per week and required Plaintiffs' (3) by agreed in theory applying failing the FLSA. See were Growers 968 held to be Salazar-Calderon 765 F.2d 1334, Ass'n, F.2d 1265 that for these a labor agreement with S&R. the Plaintiffs rely on a number of "H-2" in which so-called clearance orders Ass'n, would pay the prevailing wage required by certification are terms of their employment labor it SI 75. ) In cases DOL alleged certification of work as required by the H-2B certifications; to the part v. (5th Cir. 703 Supp. (D.C. Cir. 1992) of foreign Presidio 1342-43 F. (the forerunner of the 1985); 1021, 1031 Valley workers' Farmers Frederick County (D.D.C. 1989), ("The terms of a[n] [H-2] job clearance order which reflect DOL requirements become a part of the employment contract as a 16 matter of law."); W. Colorado Fruit Growers Ass'n, Colo. 1979) Inc. v. Marshall, ("clearance order is 473 F. Supp. 693, essentially an 696 (D. offer for a contract of employment"). However, are as generally S&R observes, unhelpful citations because they to were those "H-2" decided cases before the separation of the H-2 program into the H-2A program and the H-2B program. H-2A That separation regulations clearance However, order the 2d at 719 and H-2B Olvera-Morales, employment provide is significant that the application regulations 246 F.R.D. contract or at required shall contain 253 because be no terms the such of work current the See . . . has 644 Garcia, job contract. provision. ("An H-2B worker work guarantee."); the F. no Supp. ("[T]he court declines to apply a unilateral contract analysis to the issue of H-2B Clearance Orders. . . ."). The fact that the H-2B visa regulations do not provide that the terms the of the foreign terms of persuasive labor certification comprise, workers' those contracts, contracts evidence that certification contracts, any three terms contract, breach if of are Count there the III DOL to be. only must under the obligations while the H-2A does not be terms Because alleged fail for contract. 17 similar the are part of, requirements visa program, consider of the the of presents are is labor Plaintiffs' violation breaches it or the no of those putative cognizable S&R also argues that Count III is not really a contract claim, but is instead an attempt to privately prosecute alleged violations S&R, of the labor certification requirements, the applicable regulations create no and, says such private cause of action. The DOL is authorized including penalties, H-2B petitions petitions. Fletcher 8 743 impose administrative remedies, on employers who fail to meet conditions of and who make See Farms, to willful U.S.C. F.2d § 638, misrepresentations 1184(c) (14) (B) ; 641 (9th Cir. in H-2B Nieto-Santos 1984) v. ("[T]here is no evidence that Congress intended to permit private enforcement of the H-2 regulations. . . . [and] there is nothing underlying purposes of that be it would enforceable remedy for the legislative appropriate alien scheme to imply workers."). in the suggesting a privately However, there is nothing in the statute or the regulations that would convert the DOL's enforcement authority with respect to H-2B compliance into a private have cause of cited create no such a action authority private for that course locate any such authority. "to apply Clearance Certainly, a unilateral Orders." Congress it was of And, contract See is breach the Plaintiffs intent of Congress Nor could the to Court at least one court has declined analysis aware 18 contract. action. Garcia, well of 644 of to F. how the issue Supp. 2d to create of at a H-2B 719. private cause of action in its enactments. so, If Congress chose not to do it is not for the courts to create one. Moreover, treating Defendants applications status or Corp., 2007 Namely, approvals U.S. u[a] from doing government for party's is problematic as LEXIS grants contracts." 80937, agreement to *11, or of immigration v. (N.D. refrain do consideration." one will not For the foregoing reasons, right of Rao Id. behave "Any in Covansys 111. 2007). from of action promise an triggers no detriment to the promising party." a private nature doing is already legally obligated to do or refrain not that "the discretionary thereof Dist. something that it observe illegal the the manner Id. at *12. the Plaintiffs' under to effort to INA by arguing that craft S&R's commitments to follow federal regulations were incorporated into a state contract must fail. The motion for judgment on Count III will be granted for this additional reason. At oral argument, has produced leave to amend contract. V. evidence the the Plaintiffs represented that discovery of an Complaint employment to plead contract breach asked that for written S&R agreed to the oral motion for leave to amend. Count IV: Third Party Beneficiary Claim In and of and IV, Count clearance the orders Plaintiffs constituted 19 allege a that written the H-2B contract filings between Defendants and the Government third-party beneficiaries. as to which the Plaintiffs were Defendants allegedly "breached their employment contracts with the U.S. Department of Labor" to the detriment of Plaintiffs - purported third-party beneficiaries by failing to pay provide 40 hours Plaintiffs of work, required by FLSA. As with third-party the and prevailing wage, failing to failing to pay the minimum wage (Compl. I 81.) Plaintiffs' beneficiary breach claim of contract appears to claim, be Plaintiffs' an attempt to bootstrap a private right of action onto a violation of the H-2B regulations. The Defendants argue that a contract did not exist in the first place, the law does not citing Rao for the proposition that obeying constitute consideration. Defendants further argue that, exist, right 19-20. even if a government contract did courts have not permitted individuals to craft a private of action by claiming to be those agreements. F. See supra at Supp. cannot 2d 33, See Brug v. 41-42 circumvent arguing that he the is a Nat'l Coal, (D.D.C. lack third-party beneficiaries of 1999) a for the Homeless, (noting private third-party that right beneficiary of to a of 45 plaintiff action by government contract). The simply suggest, Plaintiffs an agreement but is a retort to that comply substantive 20 "[Form] with ETA the description 9142 is law, as of the more than Defendants terms and conditions of the Labor can accept (Pis.' Resp. Register of form: wage offered, Plaintiffs purporting to "Thus, DOL's determinations issuance under the to signing Form Appendix 9142, 75182-83 (Dec. 17, 2014) Plaintiffs accepting contract the fail claim such a theory that these than an Supp. to cite theory particular abstract contractual of are." employers 79 nature prevailing authorized by the agreed Fed. examples an of Reg. when 75179, problems be third-party similar Even there meant to protected persons. and to assuming considered Government, were a certification, above. could individuals of H-2B pose advances and the class 2d at 41 n. 12 is B.l." upon issue Defendants those terms supplemental the any would Plaintiff at Department (emphasis added). based certification between the which the of IFR conditions beneficiary the also cite to language in the evidence contractual ETA which or reject depending on what at 24.) Federal the employment is a that contract no evidence benefit See the Brug, rather 45 F. ("Third-party beneficiaries of a government contract are assumed to be merely incidental beneficiaries, and may the not enforce contrary. the contract absent clear intent to . . . Even those courts willing to hold that parties may enforce [an Executive Order] law limit usually provisions a their included in holdings the through third-party beneficiary to cases contract were 21 in which clearly the . intended to benefit the Defendants' plaintiff motion specifically."). will be granted, For and these Count IV reasons, will be dismissed. CONCLUSION For the foregoing reasons, Defendants' RULE 12(c) MOTION FOR JUDGMENT ON THE PLEADINGS (Docket No. 11) will be granted on all counts, Count with leave to file an Amended Complaint to amend III. It is so ORDERED. /s/ &P Robert E. Payne Senior United States District Judge Richmond, Virginia Date: March 17, 2015 22

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