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
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