Warren E. Burger: We will hear arguments next in Alfred L. Snapp and Son against Puerto Rico. Mr. Bacas, you may proceed whenever you are ready.
Thomas J. Bacas: Mr. Chief Justice, and may it please the Court, the issue in this case is whether the Commonwealth of Puerto Rico has standing as parens patriae to sue 32 individual apple growers from the Commonwealth of Virginia for allegedly breaching the employment contracts and allegedly violating the federal statutory and regulatory rights of a small number of Puerto Rican workers during the 1978 apple harvest. I am going to get into these points in more detail later, but we think there are three major reasons why the Commonwealth of Puerto Rico lacks parens patriae standing in this case. First, the injuries alleged did not affect the general population of Puerto Rico in a substantial way. Secondly, we believe that Puerto Rico in affect is attempting to litigate the personal claims of a small group of its citizens. Thirdly, we believe that the Puerto Rican workers allegedly aggrieved have adequate remedies and have clearly demonstrated their ability to litigate the issues themselves.
Speaker: Could they have brought a class action here?
Thomas J. Bacas: Have they brought a class action? Not in this case, Your Honor, unless you count the action in Puerto Rico. There have been a number of cases that have been brought. Not all the cases involve all of the defendants in this particular case.
Speaker: Could the individuals or respondents here have brought a class action on the same general allegations?
Thomas J. Bacas: The individuals are not respondents in this case. It is the Commonwealth--
Speaker: But could they have brought an action?
Thomas J. Bacas: --Could they have brought?
Speaker: The employees, I am speaking of. I misspoke myself when I said Respondents. The employees.
Thomas J. Bacas: Your Honor, there have been cases where they have brought purported class actions, and we have opposed those... the class certification in those cases. We just do not believe that those cases satisfy the Rule 23 requirements for class action. It is that simple. For the very same reason--
Speaker: But you have lost all those cases so far.
Thomas J. Bacas: --No, sir, we have not lost or won those cases.
Speaker: Okay.
Thomas J. Bacas: They are all pending.
Speaker: But they were all certified.
Thomas J. Bacas: No, sir.
Speaker: No. Okay.
Thomas J. Bacas: The court in New York in the case of Rios v. Donovan, which was originally styled Rios v. Marshall, has not yet made a ruling on whether to certify the class. We have opposed it, and we strenuously oppose it because we don't think it is class action material. Basically, you have a number of individual workers who have claims against individual growers. A particular Puerto Rican worker, if he accepted a job offer, accepted the job offer of one grower. If he was discriminated against, he was discriminated against by that one grower. He does not have a grievance against any other growers, and yet what they have attempted to do in this case and what they have attempted, the individual Puerto Ricans have attempted to do in these purported class actions is to lump together into one case something which really shouldn't be brought as one case. The facts in the case, in this case are relatively simple. Since the case was decided on the basis of a motion to dismiss pursuant to Rule 12(b), we must accept as true all the material allegations of fact in the complaint. The facts are basically these. There are 32 Virginia apple growers who were sued in the district court and are Petitioners in this Court. Each Virginia grower in the spring of 1978... I think the complaint says April 28th, 1978... filed individual applications to the United States Department of Labor for permission to bring in temporary foreign workers under the H2 program. The H2 program was created pursuant to the Immigration and Nationality Act of 1952, and it provides for the admission of temporary foreign workers into this country when not enough qualified U.S. workers are available. There are very detailed procedures set out in the regulations promulgated by the Department of Labor at 20 CFR Part 655. The H2 program is administered jointly by the Immigration and Naturalization Service and the U.S. Department of Labor. The Commonwealth of Puerto Rico and its Department of Labor plays only a very peripheral role in the administration of this program, and its role is severely circumscribed by these regulations. For reasons that are set forth in greater detail in the brief, the clearance order or the job offers of these individual Virginia growers, even though they were filed as early as April of 1978, were not sent to Puerto Rico until early August of 1978. This was less than two weeks before the growers were due to be certified as to their needs to bring in temporary foreign workers. This... The resulting last minute recruitment by the Commonwealth of Puerto Rico allegedly produced names of enough Puerto Rican workers to fill all the jobs of all the 32 Virginia growers, a total of 787 jobs for all 32 growers. However, only... when the apple harvest arrived, only 420 of the Puerto Ricans actually arrived in the Commonwealth of Virginia. The remainder never left the Commonwealth. The United States Department of Labor in effect ordered the cancellation of the remaining flights, allegedly because "Certain growers had refused to employ individuals referred by Puerto Rico. " Of the 420 Puerto Ricans who did arrive at the orchards, allegedly fewer than 30 had employment three weeks later.
Speaker: Mr. Bacas, I gather, at least by statute, Puerto Rico has put a special burden on the Puerto Rican Commissioner of Labor to protect the rights of Puerto Ricans participating in this program, has it not?
Thomas J. Bacas: They do under Public Law 87.
Speaker: And that is a rather broad responsibility, isn't it?
Thomas J. Bacas: I would say it is, Your Honor.
Speaker: So, do you think that the Commonwealth... I guess it is commonwealth law, not state, isn't it? that commonwealth law has any role to play in deciding a parens patriae issue?
Thomas J. Bacas: Absolutely none, Your Honor.
Speaker: None. Why not?
Thomas J. Bacas: The concept of standing is a federal constitutional concept--
Speaker: Is parens patriae--
Thomas J. Bacas: --even parens patriae standing. Well, they... in fact, they rely on it in a very limited sense. They say that, well, the Department of Labor of Puerto Rico is the proper party to bring this parens patriae action as a result of Public Law 87 if parens patriae action is permitted to be brought, so that law is--
Speaker: --Well, are you suggesting that parens patriae is a jurisdictional Article III problem?
Thomas J. Bacas: --Yes, I do, Your Honor.
Speaker: Where do you get that?
Thomas J. Bacas: Where do I get that? Article III limits the jurisdiction of federal courts to cases and controversies, and the courts have generally, as I will discuss in greater detail in my argument--
Speaker: Well, the cases and controversies, but it is between... controversies between the person bringing the suit and the defendant.
Thomas J. Bacas: --Yes.
Speaker: And didn't we have something to say about that in the case five or six years ago?
Thomas J. Bacas: Which case is that, Your Honor?
Speaker: The name eludes me at the moment, but it is discussed in some of the briefs. All I can remember about it is, it was written by Mr. Justice Marshal.
Thomas J. Bacas: Are you talking about Hawaii, Your Honor? Are you talking about Hawaii v. Standard Oil?
Speaker: Yes. That's the one.
Thomas J. Bacas: The Hawaii v. Standard Oil, there was extensive discussion of parens patriae standing in that case, which was, incidentally, brought in the district court. It was not an original action in this Court. The... I think Justice Marshal... he may correct me, but I believe he made the reference that parens patriae... the case did not ultimately turn on the question of parens patriae standing, but there was an extensive discussion--
Speaker: It was on antitrust, wasn't it? Wasn't it on antitrust, and parens patriae was just a little narrow slice of it?
Thomas J. Bacas: --Yes. It did, but the ultimate issue in Hawaii really turned on the question of damages under the antitrust laws, and whether a state was entitled to bring, in effect, a treble damage claim under the antitrust law, and the Court held it did not.
Speaker: Well, what concerns me, and the reason I asked you the question, if a state, and let's for this purpose treat Puerto Rico as a state, and it's a sovereign state, and adopts a rather, as it has here, a system for implementing the federal statute, why can't we defer to the state's view of its policy and sovereignty interest instead of substituting our own? Are you going to suggest we can't because there is an Article III limitation?
Thomas J. Bacas: Yes, sir.
Speaker: Where do you get that? I still don't understand that.
Thomas J. Bacas: Article III limits the jurisdiction of courts to cases and controversies, and we don't believe that there is a case and controversy between the Commonwealth of Puerto Rico and these individual growers. There might be a case and controversy between the individual Puerto Rican workers who allegedly were... applied for these jobs and allegedly were discriminated against, or were denied employment.
Speaker: In other words, are you saying that an individual Puerto Rican who got drawn into this and came up here and sat idle and didn't get a job or some other comparable complaint could sue that particular apple grower?
Thomas J. Bacas: Certainly. There is no question about that, Your Honor. We have never contested the jurisdiction of the courts to hear a claim of a particular worker, whether it be Puerto Rican or from some other state, to sue a particular grower.
Speaker: Of course, we have had original cases in which we have thought that we ought not allow a state suing another state to invoke our original jurisdiction if all it is doing is fronting for some private interest in the state, but that is a matter of protecting our original jurisdiction, but I still wonder why in the district courts a state isn't, in the context of this kind of case, with this kind of implementation, why a sovereign state ought not be welcome in a federal district court to represent the citizens--
Thomas J. Bacas: Your Honor, I--
Speaker: --to protect their federal rights as the federal government has set them up. Why not?
Thomas J. Bacas: --Your Honor, you are right that most of the cases, especially the cases in this Court, have involved the question of the original jurisdiction of this Court, and I think the Court has, justifiably so, been very protective of that, to limit cases which truly merit the--
Speaker: I know, but those reasons are... those considerations don't apply to a suit in the federal district court.
Thomas J. Bacas: --They don't, Your Honor, but this Court has never so limited the... in stating the test for parens patriae standing, this Court has never so discriminated between those cases of parens patriae brought as original cases in this Court and those cases brought in the district court. For example, Justice Marshal's discussion in Hawaii v. Standard Oil, that was not an original... case of original jurisdiction.
Speaker: Of course, we allow private organizations to bring lawsuits in the federal district courts on behalf of their members, don't we?
Thomas J. Bacas: Yes, sir.
Speaker: Well, then, why can't we allow states, sovereign states to bring proceedings on behalf of their citizens in district court?
Thomas J. Bacas: There are a couple of reasons, Your Honor. One is, the state is presuming here to speak for all of its workers. We don't know whether all of those workers actually even have complaints. That is one reason why we limit cases generally to those people who are actually aggrieved.
Speaker: Well, apparently the Puerto Rican legislature thought there were a number of Puerto Rican citizens who had interests under this federal setup to be protected and imposed the burden on the Commissioner of Labor--
Thomas J. Bacas: Yes, sir.
Speaker: --to take the necessary steps to protect them.
Thomas J. Bacas: The legislature of Puerto Rico did enact Public Law 87, and that Public Law 87 has been in effect overruled by the First Circuit in the case of Hernandez Flecha v. Quiros. In effect, they said, it is not the function or the role of the legislature of Puerto Rico to dictate the requirements of the job orders that are sent through this federal system. That is up to the United States Department of Labor to determine those requirements, which it does under those extensive regulations that I have referred to at--
Speaker: But I thought this lawsuit by Puerto Rico was for the purpose of enforcing these rights of Puerto Rican citizens consistently with the regulations and federal rules of the Department of Labor, aren't they?
Thomas J. Bacas: --The suit does purport to do that, Your Honor. However, I would suggest that there is a procedure set forth in the regulations which the Commonwealth is purporting to enforce. These regulations specify a procedure. When an employee has a complaint against a grower, he can file a grievance with the Commonwealth of Puerto Rico. Under those regulations, a worker from Puerto Rico who works in Virginia and goes back to Puerto Rico believing he has a grievance can file a complaint with the Department of Labor of Puerto Rico. Under the regulations, the Department of Labor of Puerto Rico must refer that complaint to the state agency in the state where the work was performed. That state agency investigates, gives a hearing if necessary, and there is even a right of appeal. If the worker... the determination is not to the worker's liking, he can appeal that to the regional administrator, where the same process works again, even the provision of a full hearing.
Speaker: Well, why can't all that operate and yet allow Puerto Rico to maintain this suit?
Thomas J. Bacas: In effect, you would be having a complete duplication of litigation. The mere fact that the Commonwealth of Puerto Rico is bringing this lawsuit has certainly not stopped the workers from bringing their own lawsuits or even filing their own complaints with the employment service system. If what you want to do is create a situation where everybody is suing everybody on the same issue--
Speaker: Incidentally, all we have got in the way of remedy involved here is injunctive relief, isn't it?
Thomas J. Bacas: --I'm sorry, Your Honor?
Speaker: It is only injunctive relief, isn't it, that--
Thomas J. Bacas: They are seeking both declaratory and injunctive relief.
Speaker: --Not damages, however.
Thomas J. Bacas: No, sir.
Speaker: No. Well, are you suggesting that this would just be an application of the ordinary rule of exhaustion of administrative remedies?
Thomas J. Bacas: I think that might--
Speaker: Or not?
Thomas J. Bacas: --There is a factor--
Speaker: Or is it different from that?
Thomas J. Bacas: --It is not quite that, because the workers themselves are really not the plaintiffs here. We are arguing against the Commonwealth, and not the... not the worker.
Speaker: Well, I know, but they are suing on behalf of citizens nevertheless.
Thomas J. Bacas: Yes. I would say that it is in part a corollary of that rule, that in effect what they should have said to their workers, look, there is a complaint system that is set up. If you have a grievance, file your complaint and we will assist you. In fact, the regulations actually say that the state agency should assist the worker in pursuing its claim.
Speaker: But if that is all there is to it, then that would be on the assumption that even if there is standing in the sense of case or controversy, that federal courts should refrain from exercising its jurisdiction.
Thomas J. Bacas: I don't concede that there is jurisdiction, for the reason that--
Speaker: Well, I know that, but assume we didn't agree with you about case or controversy, that there was jurisdiction, case or controversy. You are suggesting that there is still another reason why it should not be exercised--
Thomas J. Bacas: --Yes.
Speaker: --that there is an administrative remedy that should be resorted to first.
Thomas J. Bacas: Oh, yes.
Speaker: Certainly it is not the ordinary exhaustion doctrine that you are talking about, I take it, since that is ordinarily raised by the state or saying you should have tried your state remedies first. Here, the state is saying, in effect, you don't have to use your administrative remedies. I mean, in fact, we will sue on your behalf.
Thomas J. Bacas: Well, I think we would have that right to raise that, too, Your Honor, not just the state has the right to raise that argument. I think we... you know, we are the targets... we are the targets of these complaints, and if there is a procedure, an administrative procedure set forth, especially with a party which is a member of this employment service system. You know, they receive funding from the United States Department of Labor to participate in this system, and it seems to me that they must have some obligation to follow the regulations which administer this system and regulate the system.
Speaker: You are talking about federal regulations--
Thomas J. Bacas: Yes.
Speaker: --and not Puerto Rican regulations.
Thomas J. Bacas: Yes.
Speaker: For purposes of this case, counsel, are the workers in Puerto Rico or the government of the Commonwealth of Puerto Rico any different from the State of Michigan with respect to all the automobile workers of Detroit, for example? Is there anything special about the commonwealth status that gives it a special parens patriae status?
Thomas J. Bacas: I would say no, Your Honor.
Speaker: In other words--
Thomas J. Bacas: There is no difference. In effect, the Puerto Rican workers are considered U.S. workers for purposes of the law--
Speaker: --So for these purposes, this case would have to be decided, would you say, on the same basis as though the State of Michigan brought a suit against a lot of people on behalf of the automobile workers?
Thomas J. Bacas: --It seems to me the same principle would apply. The same principle would apply whether we are talking about Puerto Rico or the State of Michigan or the State of Texas or the State of Florida. States which... the southern states are most of the labor supply states in this program. That is where most of the farm labor comes from. So it seems to me that if you are going to grant parens patriae standing to the Commonwealth, which I don't think you should, I am not sure how you distinguish the commonwealth situation from the State of Texas or the State of Florida. As a matter of fact, there have been a couple of amicus curiae briefs filed by the State of New York and the Commonwealth of Massachusetts, so there is obviously... there are some states out there who are anxious to pursue their rights and bring lawsuits if the Court so permits. The complaint in this case sets forth three different categories of alleged violations.
Speaker: Excuse me, Mr. Bacas. May I ask you one other question? If we have to deny, and it is not to be denied on jurisdictional grounds and Article III grounds, then where does the federal courts' authority to deny a sovereign state parens patriae come from? If it is not Article III, where is it?
Thomas J. Bacas: If it is not under Article III, I am not sure where else you would find it--
Speaker: There isn't any other place.
Thomas J. Bacas: --Your Honor.
Speaker: So if we don't agree with you on Article III, that would be the end of it?
Thomas J. Bacas: I would be hard-pressed to give you another basis for that, Your Honor.
Speaker: Did you read Hawaii against Standard Oil, which of course originated in the district court, as turning on Article III considerations?
Thomas J. Bacas: Ultimately, it really, it seems to me it turned on an interpretation of the Sherman Antitrust Act, and not really Article III considerations. It got into a question of double recovery of damages--
Speaker: But all of the parens patriae cases were cited. The original jurisdiction parens patriae cases were cited--
Thomas J. Bacas: --Yes, they were.
Speaker: --weren't they?
Thomas J. Bacas: Yes, they were, Your Honor, but I think Justice Marshal noted early on that even though he was going to explore the history of parens patriae, the case really did not turn on the concept of parens patriae. I think Hawaii is important because of its discussion that there was reference to the answer from Justice Brennan earlier that there has never been this distinction certainly in this Court and most certainly in the lower courts, the courts of appeals, that these... the standards that apply to parens patriae apply whether we are talking about a case arising under the original jurisdiction of this Court or one that is brought in the district court, and it applies whether we are talking about damages or it applies whether we are talking about injunctive relief. I would note that in Pennsylvania v. New Jersey, the State of... the Commonwealth of Pennsylvania was seeking declaratory and injunctive relief. They weren't really seeking damages in that case, and yet this Court denied parens patriae standing. The Court said that in effect they were trying to sue on behalf of their individual citizens claims which those citizens could bring on their own.
Speaker: So why couldn't they do that?
Thomas J. Bacas: Why couldn't who do that, Your Honor?
Speaker: The state.
Thomas J. Bacas: They couldn't. You say--
Speaker: Well, I know they couldn't, but what was the reason? Do you... Could you get it out of the opinion?
Thomas J. Bacas: --What was the reason? The fact that they were in effect pursuing the individual claims of their citizens which those citizens could pursue themselves.
Speaker: So is that just an application of an ancient rule that the real party in interest should sue, or was it an Article III decision like you suggested earlier?
Thomas J. Bacas: I would say it is both.
Speaker: Then you do have a fall-back position. The fall-back position is that even if the case or controversy limitation doesn't bar you, bar this action, that even more ancient principles, namely, that the party in interest, that Puerto Rico has no real interest in this case.
Thomas J. Bacas: I would say that, Your Honor.
Speaker: Mr. Bacas, in analyzing this, should we consider some of the same factors that the Court considered in determining standing for a private organization such as in Havens Realty Corp. opinion decided this term?
Thomas J. Bacas: I believe they should, Your Honor. They should use the same standards. In fact, they generally have used the same standards. We have--
Speaker: In applying those, then, how is Puerto Rico different from the Organization Home which was found to have standing in Havens Realty?
Thomas J. Bacas: --When an association is suing on behalf of its members, its members actually have... or at least the association must allege that the actions affect the members, and therefore that the members are synonymous with the association. I am not so sure we can make this assumption in the case of a state. The... cannot identify the state or the Commonwealth of Puerto Rico necessarily with the individual citizens. Otherwise, all elections would be decided 100 percent to zero percent.
Speaker: Wasn't it in the Sierra Club case or something that it was recognized that even if an association has 10,000 members, if it is alleged that at least two or three of them use that area along the river for camping, that that is enough to give the association standing, or is that not right?
Thomas J. Bacas: I don't--
Speaker: It doesn't have to affect all the members, does it?
Thomas J. Bacas: --Your Honor, I don't recall the details of the Sierra Club case, but I would be bothered by that analysis if that were the case.
Speaker: I would think you would, yes. Thank you.
Thomas J. Bacas: The complaint alleges three categories of violations, and I think it is important to focus on the violations that are alleged. The first category is an alleged failure to provide employment to Puerto Ricans, and here, however, we have two subcategories. With respect to ten growers, the alleged failure to provide employment is based on the fact that their Puerto Rican workers never left the Island of Puerto Rico as a result of the cancellation of their flights. In fact, this is the only allegation in the complaint against four of the Virginia growers named in this complaint, the fact that their workers never left Puerto Rico because the United States Department of Labor cancelled their flights. Eight other growers allegedly denied employment to Puerto Ricans who showed up at their orchards. With respect to these eight, at least seven of them also allegedly did other things to their workers. So we are not talking about a blanket refusal to employ. Even in the case of the eight who allegedly refused to hire those who arrived, they actually hired other Puerto Rican workers, even if we accept the allegations of the complaint here. I see that I have five minutes left, and I would like to reserve some time for rebuttal.
Warren E. Burger: Very well. Mr. Lenzini?
Paul A. Lenzini: Mr. Chief Justice, members of the Court, this litigation is only one chapter in an attempt by the Commonwealth of Puerto Rico to place unemployed farm workers in jobs in the east coast apple harvest. The 1978 conduct complained of is not an isolated occurrence, but part of a continuing effort by certain apple growers to discourage referral of Puerto Rican labor. This is a claim for equitable relief, but much of the equity of the claim is not before the Court. Money damages were not sought. Because the complaint was dismissed for lack of standing, the factual allegations are to be taken as true for present purposes.
Speaker: Suppose there were two residents of Puerto Rico who were advancing this claim, instead of--
Paul A. Lenzini: If this were being advanced on behalf of two Puerto Rican workers? I think that parens patriae standing would not exist, if that were all.
Speaker: --How about 20? Where do you draw the line?
Paul A. Lenzini: The line is hard to draw, Your Honor, but in this particular case we have a history of three years of attempts by the Commonwealth of Puerto Rico to place workers, and we have had in 1978 particularly a complete frustration of a very large government effort to place workers in the east coast apple harvest. If a single worker, or if two workers were fired by the growers, I do not see that we would have parens patriae standing, because I believe that it is different from--
Speaker: You must have some theory. What proportion of the total market or the total population, or where... there must be a line somewhere.
Paul A. Lenzini: --The harm must be serious. It is very hard to draw the line, Your Honor. The harm must be serious, and this is serious harm particularly because it is addressed at a group boycott in effect. In Georgia versus Pennsylvania Railroad, the gravamen of that complaint was that the 20 railroads had conspired to prefer other ports to Georgia ports, and therefore it was an attempt, Justice Douglas held, to discriminate against the State of Georgia, and thereby to place her citizens in an inferior position vis-a-vis other states. This is what we have here.
Speaker: Is that what you alleged?
Paul A. Lenzini: This is what we allege. We allege the--
Speaker: And so in a sense you are saying it is an ethnic discrimination.
Paul A. Lenzini: --Puerto Rican discrimination.
Speaker: And it would affect everybody in Puerto Rico.
Paul A. Lenzini: Puerto Rican discrimination, Your Honor, because Puerto Ricans represent the only large labor pool that can compete with the alien workers. Puerto Rican workers represent a threat to the use of alien workers.
Speaker: Let me put it another way, and tell me if I am wrong. I thought your position was that the interests of Puerto Rico transcends the interest of the individual worker.
Paul A. Lenzini: Exactly.
Speaker: And hence supports your parens patriae theory.
Paul A. Lenzini: That's correct. It is our position that there--
Speaker: Well, then, why would you say... if there were just two involved, just two workers, you really should come out with the same result, that it is really a discrimination against Puerto Ricans.
Paul A. Lenzini: --I think, Your Honor, that in parens patriae actions, while it has not been really articulated, there has been a reluctance to permit the sovereign to unleash his majesty upon private litigants, and therefore as in In Re Debs, before the government is going to be permitted to come in against private parties, there must be a public wrong, and that the sovereign may not vindicate the rights of individuals, a small number of individuals.
Speaker: Is that an Article III standing--
Paul A. Lenzini: No, I don't think it's Article III except in the larger sense of justiciability. I believe that if a... if 95 percent of the people of the state were affected, and the state went in to seek an advisory opinion, there would be no Article III jurisdiction.
Speaker: --What would happen if a complaint were filed by the State of North Carolina against the State of New York alleging that New York growers wouldn't hire North Carolina fruit pickers? Would we have jurisdiction?
Paul A. Lenzini: In the Supreme Court.
Speaker: Would we have jurisdiction?
Paul A. Lenzini: Original jurisdiction?
Speaker: No, any jurisdiction.
Paul A. Lenzini: The State of North Carolina sues the State of New York.
Speaker: No, sues the apple growers of New York, saying that they won't hire citizens of North Carolina to pick apples.
Paul A. Lenzini: I think there may be jurisdiction parens patriae.
Speaker: On what... on parens patriae?
Paul A. Lenzini: Yes.
Speaker: Well, then, that opens up the whole can of worms, doesn't it? Every state can sue on anything on parens patriae.
Paul A. Lenzini: No, I think, as I say, this is not associational standing. I believe that this is not like the Sierra Club.
Speaker: Well, how is Puerto Rico qua Puerto Rico injured in this case?
Paul A. Lenzini: Puerto Rico is injured like Georgia was injured in the Pennsylvania Railroad case. It is injured because the treatment of the workers has been a systematic attempt--
Speaker: Of some of its citizens.
Paul A. Lenzini: --Of some of its citizens. Of those citizens--
Speaker: The number being unimportant.
Paul A. Lenzini: --The question is how much of the effort--
Speaker: I come back to the Chief Justice. Would it apply to two?
Paul A. Lenzini: --how much of the effort was frustrated. This has been an effort by the Commonwealth of Puerto Rico, an important effort, to send workers to the east coast apple harvest--
Speaker: But the state... does the Commonwealth of Puerto Rico have the right to make American citizens hire their people?
Paul A. Lenzini: --The Commonwealth of Puerto Rico is a part of the Federal Employment Service System. A major facet of that system is that a strong Congressional preference has been established for domestic workers over foreign workers. As part of the Federal Employment Service System--
Speaker: Well, is the Federal Employment Service involved in this case?
Paul A. Lenzini: --Indeed it is. The Puerto Rico Department of Labor is a part of the Federal Employment Service System.
Speaker: Is the Federal Employment Services in this case?
Paul A. Lenzini: Yes, it is.
Speaker: How?
Paul A. Lenzini: I am sorry. The Federal Employment Service System is involved in the case because the workers' job orders were sent through the Federal Employment Service System to Puerto Rico. They are not a party.
Speaker: Well, they are not up here--
Paul A. Lenzini: They are not a party to the case. The Department of Labor is not a party to the case.
Speaker: --And it is not here in any other way.
Paul A. Lenzini: Nor is it here in any other way.
Speaker: Do I assume they are not interested?
Paul A. Lenzini: They have filed an amicus brief in which they have said that this case by the Commonwealth does not impair or in any way contradict the interests of the United States. They agree with us that the administrative remedies are ineffective, and they do not lend themselves to be used in a situation where there is a systemic violation, an industry-wide violation by the apple growers. I think that the Secretary of Labor has been given no statutory authorization to bring actions against the growers. I believe that the United States, however, is in no worse position than the Commonwealth of Puerto Rico, because I think under 28 USC Section 1345, that the Attorney General on behalf of the United States would have the right if he chose to do so to go in to enforce an action against large-scale violations--
Speaker: But he has not done so.
Paul A. Lenzini: --He has not done so.
Speaker: So I don't see what interest that is of ours. I mean, I am just-- --Suppose-- --I still just don't see how the Commonwealth as a unit is injured, because--
Paul A. Lenzini: The Commonwealth as a unit--
Speaker: --of 700, a maximum of 700 of their citizens are unemployed.
Paul A. Lenzini: --Justice Marshal, that is--
Speaker: They've got more than that unemployed in San Juan alone.
Paul A. Lenzini: --We have 2.7 million people in Puerto Rico--
Speaker: That's right.
Paul A. Lenzini: --as of the 1970 census.
Speaker: And so 700 is a very small proportion.
Paul A. Lenzini: If you stop it at that, Justice Marshal, it is a small proportion. It is--
Speaker: That is just what I thought you were. You want to sue everybody now, don't you?
Paul A. Lenzini: --I don't want to sue everybody. I want to not take that narrow, that inhospitable a view of the complaint, because we have more people injured than those who are directly harmed by the growers' actions. We have the people who didn't come in 1979, who didn't come in 1980. We have the frustration by the Commonwealth of its effort. It is being denied the right to send workers in to a major crop in the United States. That crop, the east coast apple harvest, every year utilizes 5,000 to 6,000 aliens. Now, 5,000 to 6,000 jobs every year from here on out... when you have an unemployment rate--
Speaker: I thought it was less than 1,000 involved in this case.
Paul A. Lenzini: --In this case we--
Speaker: Where do you get the 7,000.
Paul A. Lenzini: --Seven... 6,000 aliens, visas are usually granted for around 6,000 aliens.
Speaker: Puerto Ricans?
Paul A. Lenzini: Aliens. Puerto Ricans are--
Speaker: Well, you don't represent all of them, do you?
Paul A. Lenzini: --No, we--
Speaker: You are only talking about Puerto Ricans.
Paul A. Lenzini: --But we have a right to a preference over the aliens, and if we show up at the orchards, we are entitled to a preference. Now, they have said that the Puerto Ricans, they have tried to make them appear to be unavailable. We are available, and if we are available, we are entitled to a preference over the alien workers. The Congress has provided a very strong preference for the domestic worker.
Speaker: Mr. Lenzini, did you say that the government had filed a brief in this case, or--
Paul A. Lenzini: The government filed an amicus brief in the Brancamp case, Justice Rehnquist.
Speaker: --Which isn't before us now.
Paul A. Lenzini: It is... A petition for writ of cert was filed in Brancamp, and it is pending, but I have--
Speaker: Stay close to the microphone, counsel. Is that the Second Circuit case?
Paul A. Lenzini: --That's the Second Circuit case, but in this case, I have filed a supplemental brief in which I appended the amicus brief of the Department of Labor in the Brancamp case.
Speaker: Was that filed in this Court or in the Second Circuit?
Paul A. Lenzini: The amicus brief was filed in the Second Circuit at the request of the panel. The day after the argument was held, they requested the Solicitor General to file an expression... the interest of the United States. The Department of Labor, as it turned out, filed a brief for the Secretary, because his was the primary responsibility for carrying out the statute, and in that brief, the question had been raised as to whether or not the Employment System... the Employment Service complaint system, which is this administrative relief provision available to the workers, whether or not that was an adequate remedy for these workers, and the answer given there was no, it is not, it does not address the type of widespread, industry-wide, systematic discrimination which was the subject of this case. And more than that, the ultimate relief that could be granted would be the denial of the right of the growers to bring in aliens in the following year, and they would not be entitled to use the Employment Service System. That is of no use to the Commonwealth of Puerto Rico, because we want to send workers up here to pick apples.
Speaker: The amicus brief you are referring to of the United States you filed as an appendix to your brief filed here.
Paul A. Lenzini: Correct.
Speaker: And that was in the response... that was at the petition of cert stage.
Paul A. Lenzini: Correct, Your Honor.
Speaker: That was filed on May 8th, 1981?
Paul A. Lenzini: April, 1981. It is entitled... it's a brown brief entitled Response of Commonwealth of Puerto Rico to Supplemental Brief in Support of Petition for Writ of Cert.--
Speaker: Right. Thank you. Let me try another hypothetical to see if I can understand. Suppose an action is brought by the State of Georgia against all the hotel and restaurant owners in New York City, where probably there is the largest concentration of that group in the country. Assume it, anyway. And they allege that the minority unemployment in the State of Georgia is 25,000 people, and that they want jobs in New York in hotels and restaurants, and that those jobs are now held two-thirds by Puerto Ricans, and that there is a plan and scheme to hire Puerto Ricans for these positions in New York, and that therefore the unemployed of Georgia are being denied something. Now, laying aside all the merits, does Georgia have parens patriae standing to bring that suit?
Paul A. Lenzini: --There is no federal right, Mr. Chief Justice. In this case, we have a strong Congressional preference articulated in the Immigration and Nationality Act. That preference is brought forward by the Federal Employment Service System whenever growers choose to try and get alien workers brought in. The privilege to bring in alien workers is a privilege granted to few industries in this country. You can name them on the fingers of one hand. The apple growers is one industry that may use alien workers. Now, Detroit may like to do that, and the steel mills may like to do that, but they cannot do that. The apple growers can do that, and when the apple growers go out for this privilege, they take on certain duties and responsibilities, and one of the duties and responsibilities is to make available on a non-discriminatory basis jobs to U.S. citizens who show up, and I believe that that would not be the situation in your hypothetical. There is a federal right here.
Speaker: Isn't there a federal right in any collective minority group not to be discriminated against on the... at least on the allegations that I have hypothesized to you?
Paul A. Lenzini: There is a right not to be denied equal treatment, except by due process standard. Gonzalez versus Freeman is a case that comes to mind. But in the situation you... your hypothetical, you... I don't think that Georgia is--
Speaker: Georgia's economy is being injured by reason of having to have all these alleged thousands of people on relief and unemployed, and so the state of Georgia and its taxpayers have certainly, if the allegations can be established, but the allegations certainly make an injury to the State of Florida as such, do they not?
Paul A. Lenzini: --I don't see the right... I don't see the right, Mr. Chief Justice. I see the right here. I don't see the right there. If all you are saying is that--
Speaker: You mean the federal right.
Paul A. Lenzini: --The federal right.
Speaker: Don't you think there is a... You are saying to us then there is no federal right on minorities as a group not to have some other category of minorities also preferred over them?
Paul A. Lenzini: Well, we certainly have Title VI of the Civil Rights Act, and we have Title VII of the Civil Rights Act, and we have the right... we have federal enforcement of these, and we have private enforcement of these. We usually have individual complaints. In this particular case, we have an entire government program which is being defeated. The Puerto Rican government is being defeated in its attempt to send workers into the east coast apple orchards. They are being frustrated almost completely.
Speaker: And the statutory right is to be hired before foreign workers?
Paul A. Lenzini: That is the statutory right. A strong Congressional preference has been established.
Speaker: But all you are saying is that these people who are discriminated against according to you have a right of action, but that doesn't give the right of action to Puerto Rico. If so, the statute should have said so. Is it that simple?
Paul A. Lenzini: No, I don't think it is quite that simple, because I don't know of any federal statute which has ever established a parens patriae right, because a parens patriae right has always depended upon the circumstances of the particular case. It is a very elusive concept, and the concept is, when the injury--
Speaker: Do you think that the Commonwealth of Puerto Rico has a parens patriae right superior to the states'?
Paul A. Lenzini: --No, I think it is the same as the states'.
Speaker: The same as the states', and the only case you can get is the Georgia case.
Paul A. Lenzini: Georgia versus Tennessee Copper.
Speaker: That is the only one.
Paul A. Lenzini: Georgia versus Pennsylvania Railroad.
Speaker: That's the only one.
Paul A. Lenzini: I suppose there are some others.
Speaker: What about-- --You suppose? You didn't look long? If there were others, wouldn't you have cited them?
Paul A. Lenzini: Well, those are the cases in the Supreme Court.
Speaker: Well, the Supreme Court cases aren't really very consistent, are they? Do you see any way of reconciling Georgia versus Pennsylvania Railroad with Oklahoma versus Santa Fe Railroad?
Paul A. Lenzini: Yes, I think so, because I think in Georgia versus Pennsylvania Railroad, the question was one of discrimination of a particular sector of the country. Georgia was being put in an inferior position by railroads who were preferring the ports of other nearby states, and I think that was not a concept. It's the discriminatory element in Georgia versus Pennsylvania Railroad that distinguishes it, I think, from the Atchison case, and that's what we have here, because we have here an attempt by the growers to prevent the Puerto Ricans from being a threat to their use of alien labor.
Speaker: Well, do you think that threat... do you think the action of the growers was directed against Puerto Ricans in a different sense than it would have been directed against people from Maryland or people from Michigan, or were they just anxious to use alien labor and exclude whatever citizens they might want to, or might have to?
Paul A. Lenzini: I think that's right. We have 23 percent rural unemployment, which means we have a body of workers who are unemployed, rural laborers, and who are available as a pool to supply, to be a labor supply for agricultural pursuits.
Speaker: Well, supposing Michigan had exactly that same situation, 23 percent unemployed. Would they have any lesser a claim than Puerto Rico did?
Paul A. Lenzini: No, I think not. I think not.
Speaker: So there is nothing peculiar about the Puerto Rican labor force or the status of Puerto Ricans that gives you any special standing.
Paul A. Lenzini: I think that's correct. I think there's nothing special about Puerto Rico in this respect. Public Law 87 was enacted by the Commonwealth legislature in 1962, and it set forth special obligations on the part of workers who would hire for off-Island use Puerto Rican laborers. In the mid-seventies, 1975, 1976, the U.S. Department of Labor held that if the Puerto Ricans were to insist upon these extra conditions that were not available, not required under the Federal Employment Service System, then they would be held legally unavailable in terms of the Immigration and Nationality Act. That is to say, even though they were in fact available to work in these orchards, they would not be held to be legally available because they were asking for more burdensome conditions. When this Court denied certiorari in the Flecha, Fiecha versus Quiros, the Commonwealth legislature said, we will have to act, because Public Law 87, designed to help the workers, is being used to bar the workers, and so, they said, if jobs come through the Federal Employment Service System, the Secretary of Labor is permitted, given the discretion to exempt these workers... these growers, pardon me, from the additional conditions of Public Law 87. In due course, then 2,000 Puerto Rican workers were recruited to work in the 1970 apple harvest, but immediately four associations of apple growers went into court in the Western District of Virginia. They had initially complained that they were subject to the terms of Public Law 87, and they now complained that they were exempted from the provisions of Public Law 87. On the strength of their assurances to the district court that giving an injunction permitting all of these immigrant visas... non-immigrant visas would not in any way harm the domestic workers. On the strength of that, they obtained an injunction permitting them to bring in 1,000 additional alien laborers. Thereafter, there were too many workers in the orchards, and the massive firings and the failure to hire at the orchard gates ensued in the Virginia orchards. Mr. Bacas, opposing counsel, says that the individuals can sue on their own. There is no need for this parens patriae action. He has a problem, however, because we have people who were left at the gates in Puerto Rico. When the growers were not hiring these people in the orchards, the U.S. Secretary of Labor advised Secretary Quiros that he could not send up any more, he should not send up any more, and so these workers who were ready to go up to Virginia were cancelled. Where is the remedy? Is it breach of contract for those workers who were left at the airport? Is it breach of contract for those workers who didn't come up in 1979? They have no remedy. There is no remedy under the employment service complaint system. That is futile. There is no remedy in Puerto Rico, we believe, that is a secure remedy. In Maryland versus Louisiana, just last term, the question was whether or not this first use tax, 7 cents per MCF on gas coming into Louisiana, would that give rise to a parens patriae claim on the part of eight states who sued in the original jurisdiction of this Court. The Court held that there was parens patriae jurisdiction. It involved many people; no doubt. It was 7 cents per MCF. But there were claim... there were forums available in Louisiana. There was a tax refund suit filed by a natural gas carrier, but the Court in a footnote held that because there was no injunction, preliminary injunction available prior to decision on the merits, that was an imperfect forum. Well, we have a number of imperfect fora in this situation. The administrative forum is certainly imperfect. Suits by individuals either in Puerto Rico or in Virginia, a very imperfect form, given the nature of these immigrant laborers. We have the class action suit up in New York involving New York growers. That comes fairly close to getting the kind of thing, the kind of relief that we are seeking, except that there is no class action suit against the Virginia growers. We finally have the statement of the Department of Labor that the parens patriae action of the Commonwealth does not infringe any U.S. interest. It is consistent with the interests of the Department of Labor, because it is consistent with the strong policy preference. If that policy preference is to be established, we can send workers up to Virginia. If it is not, we cannot, and this suit, we submit, is the only effective vehicle to establish in the Western District of Virginia the strong preference of Congress that U.S. workers be preferred over aliens. I submit that the decision of the Fourth Circuit along with the decision of the Second Circuit on these issues should be affirmed.
Warren E. Burger: Mr. Bacas.
Thomas J. Bacas: Mr. Chief Justice, and may it please the Court, I just have a few points. First, I would like to emphasize that both the district court and the court of appeals in this case agreed on the proper test to apply in determining parens patriae standing. Both courts said, you look at the size of the segment of the population affected. You look at the magnitude of the harm, and you look at the ability of those injured to rectify the alleged wrongs on their own. The disagreement between the court of appeals and the district court was not on what test to apply, but how that test applied to these particular facts. We agree with Justice Marshal that 787 workers, which are the only workers that are covered by this particular complaint, despite insinuations by counsel to the contrary, the only growers involved in this case are the Virginia apple growers, 32 Virginia apple growers. The only Puerto Ricans involved are the 787 who allegedly accepted those jobs in 1978. That 787 number constitutes 3/100ths of 1 percent of the 1970 population of Puerto Rico.
Speaker: Yes, but it is still a pretty large labor force, isn't it? You don't have 787 in your law firm, I am sure.
Thomas J. Bacas: I am sorry, Your Honor? I didn't catch that. I didn't catch the question, Your Honor.
Speaker: I said, it is still a fairly large working force, over 700. It is a lot larger than any law firm in the country.
Thomas J. Bacas: But it is still not a significant portion of the population--
Speaker: Well, are we--
Thomas J. Bacas: --or of the labor force of Puerto Rico, Your Honor.
Speaker: --Are we dealing in percentages? You take the case of North Dakota against Minnesota. That didn't involve many people either who were flooded out.
Thomas J. Bacas: I believe, if... there have been many parens patriae suits. I believe that is probably one of the ones involving diversion of water or some other injury to the land, and also a dispute between actions in one state that have an immediate effect in another state. I would submit that those are substantially different from this case, where the alleged quasi-sovereign interest turns on the harm to the general economy of the state. If the parens patriae test could be satisfied in this case, it could be satisfied in virtually any case, and I don't believe the parens patriae test has been broadened that much over the years. Mr. Lenzini made a reference to the fact that there are upwards of five to 7,000 jobs in which he can place Puerto Rican workers, but what he is talking about, he is talking about the entire east coast apple harvest, and I want to stress, we have states which aren't even involved in the 1978 program. The complaint alleges that Puerto Rican workers were sent to only four states. They were sent to Virginia, West Virginia, Maryland, and New York. He leaves out the six New England states, which evidently received no Puerto Rican workers in 1978. So when he talks about a larger number, he is not talking about this case. In this case, we are talking about 787 Puerto Rican workers. We are talking about 32 Virginia apple growers. Obviously, a number of you have pointed out, the standing cannot turn on the unemployment rate in Puerto Rico, or in any state. I would note that the unemployment figures are cited in the... Page 8 of the amicus curiae brief of the State of New York, and they show that the unemployment rate was 19.9 in 1977, the year before. In 1978, it was 18.1 percent. In 1979, the year after, it was 17 percent. I don't know how a constitutional concept of standing can turn on such a fluctuating standard of unemployment rate. The other point I want to make, the last point, is that there is no allegation of a boycott in the complaint, and there is no allegation of conspiracy in the complaint. The complaint merely alleges that certain individual Puerto Ricans have individual grievances against individual growers. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.