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VAZQUEZ v. FERRE

November 19, 1975

David VAZQUEZ, Individually and on behalf of all others similarly situated, Plaintiff, Asociacion De Trabajadores Agricolas de Puerto Rico et al., Intervenors,
v.
Luis A. FERRE, Individually and in his capacity as Governor of the Commonwealth of Puerto Rico, and his successor in office, et al., Defendants



The opinion of the court was delivered by: COHEN

 Judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), is sought by the following defendants: Department of Labor of the Commonwealth of Puerto Rico; Luis A. Ferre, Governor of Puerto Rico; his successor in office; Julia Rivera De Vincenti, Secretary of Labor of Puerto Rico; her successor in office; Nick Lugo, Jr., Director of the Migration Division of the Department of Labor of Puerto Rico; and his successor in office (hereinafter referred to as the commonwealth defendants). The remaining defendants are present and former officials and governmental departments of the State of New Jersey. Plaintiff, David Vazquez, is a migratory farmworker from Puerto Rico, who began employment in 1972 with Columbia Fruit Farms. This corporation is a member of the Glassboro Service Association, an association of New Jersey farmers. Plaintiff seeks to represent all others similarly situated. *fn1" Two other individuals and an association of farmworkers have been permitted to intervene.

 The complaint sets forth essentially three causes of action against the commonwealth defendants. First, it is alleged that the government officials and the Department of Labor of the Commonwealth of Puerto Rico have breached duties imposed on them by the Wagner-Peyser Act, 29 U.S.C. § 49 et seq. (1970) and by regulations promulgated by the United States Secretary of Labor, 20 F.R.C. § 620 (1975). The Act and regulations govern the interstate clearance system of the United States Training and Employment Service and establish minimum housing conditions to be maintained by employers who participate in this program. Jurisdiction is based on 28 U.S.C. § 1337, inasmuch as the cause of action arises under an Act of Congress regulating commerce. Further, plaintiff contends that the commonwealth defendants, under color of state law, have deprived him of rights protected by the Constitution and laws of the United States, in violation of 42 U.S.C. § 1983 (1970), giving jurisdiction to this court pursuant to 28 U.S.C. § 1343 (1970). Finally, the complaint alleges that the commonwealth defendants have breached Puerto Rican Law # 87, 29 L.P.R.A. §§ 526-534 by failing to protect the migratory farmworkers' contractual rights relating to housing conditions. Jurisdiction is further alleged under principles of pendent jurisdiction. Plaintiff seeks declaratory and injunctive relief, as well as money damages.

 For the reasons discussed below, the motion for judgment on the pleadings will be granted as to the Department of Labor of the Commonwealth of Puerto Rico and denied as to the remaining commonwealth defendants.

 I. LIABILITY UNDER THE WAGNER-PEYSER ACT

 Commonwealth defendants deny the allegations of the plaintiff that they have breached any duty imposed upon them by the Wagner-Peyser Act, or that they conspired with the New Jersey defendants to violate the Act.

 A.

 The Wagner-Peyser Act, 29 U.S.C. § 49 et seq. (1970), established a national system of state employment offices and created the United States Employment Service, which is within the Manpower Administration of the Department of Labor. The United States Employment Service coordinates the state employment offices and maintains an interstate clearance system that matches workers in one state with jobs in other states. The regulations promulgated by the Secretary of Labor, pursuant to the Act, set up procedures for clearing workers between states, and established standards for housing conditions to be provided by the employers. An employer in need of workers forwards a request to the state employment agency which, after determining that in-state workers are unavailable, submits a "clearance order" to the United States Employment Service. The Service will then refer the clearance order to other state employment agencies that may have excess workers who will travel to the state of the employer to fill the request. The regulations require the state agency to ascertain that the housing conditions provided by the employer meet minimum standards before the agency may place the clearance order into the interstate clearance system. 20 C.F.R. § 602.9 (1975). See generally, Five Migrant Farmworkers v. Hoffman, 136 N.J.Super. 242, 345 A.2d 378 (Law Div.1975). Moreover, the United States Employment Service is required to withhold the interstate recruitment services if the state agency has not performed this function.

 It has been held that the Wagner-Peyser Act and the regulations thereunder, promulgated by the United States Secretary of Labor, give rise to an implied civil cause of action which can be invoked by migratory farm workers who accept work through the interstate clearance system and are deprived of the protections and benefits guaranteed by the Act. Gomez v. Florida State Employment Service, 417 F.2d 569 (5th Cir. 1969). The judicial doctrine, whereby private civil remedies are fashioned from federal regulatory statutes, was recognized by the United States Supreme Court as early as 1916 in Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 36 S. Ct. 482, 60 L. Ed. 874 (1916). The Court there granted an implied civil remedy to a railroad employee whose injury resulted from the railroad's violation of the Federal Safety Appliance Act. Federal courts have frequently employed this doctrine to find implied causes of action created by other regulatory statutes. *fn2" Where an Act of Congress grants rights to a class of persons, "it is not necessary to show an intention to create a private cause of action." Cort v. Ash, 422 U.S. 66, 82 95 S. Ct. 2080, 2090, 45 L. Ed. 2d 26 (1975) (emphasis in the original); see J.I. Case Co. v. Borak, 377 U.S. 426, 84 S. Ct. 1555, 12 L. Ed. 2d 423 (1964).

 Implied civil remedies to enforce rights created by regulatory statutes have been recognized where the legislation expressly provides no effective remedy and the court determines that implied relief is necessary to carry out congressional policies. Breitwieser v. KMS Industries, Inc., 467 F.2d 1391, 1392 (5th Cir. 1972). *fn3" The Wagner-Peyser Act was also the basis of an implied civil remedy in Galindo v. Del Monte Corp., 382 F. Supp. 464 (N.D.Ill.1974). The rationale of the Gomez and Galindo decisions was that the remedies provided by the Act were inadequate to protect employees' rights; inasmuch as the only sanction set forth in the statute is termination of federal funding for the state programs, it was deemed essential to grant private civil relief to prevent abrogation of congressional policy.

 In order for private civil liability to be incurred, however, the defendants must have breached duties imposed on them by the Act. It is plaintiff's contention that the commonwealth defendants were required by the Act and regulations to ascertain whether the New Jersey employers would provide adequate housing and to refuse to refer the Puerto Rican workers to the interstate clearance system unless the minimum standards were met. Citing 20 C.F.R. § 620.1(a), which provides:

 
The Manpower Administration of the U.S. Department of Labor has established facilities to assist agricultural employers in recruiting workers from places outside the State of intended employment. The experiences of the Administration indicate that employees so referred have on many occasions been provided with inadequate, unsafe, and unsanitary housing facilities. To discourage this practice the Administration has established a policy of denying its interstate agricultural recruitment services to employers until the State agency affiliated with the United States Training and Employment Service which receives the order for interstate recruitment has ascertained that housing and facilities: (1) Are available; (2) are hygienic and adequate to the climatic conditions of the area of employment; (3) are large enough to accommodate the agricultural workers sought; and (4) will not endanger the lives, health, or safety of workers and their families. (emphasis supplied),

 plaintiff argues that the "state agency . . . which receives the order for interstate recruitment" is the agency of the state from which the workers travel. The regulations as a whole, however, indicate that the state agency referred to is the agency which "receives" clearance orders from the employer, that is, the agency of the state in which the employer is located, in this case New Jersey. This construction is supported by the use of the term "state agency" in 20 C.F.R. § 602.9 which provides that:

 
(a) The State agency has established, pursuant to recruitment efforts made in accordance with regulations, policies and procedures of the Manpower Administration (United States Training and Employment Service), that domestic agricultural workers ...

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