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, )

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