Hearings, Reports and Prints of the House Committee on Education and Labor

cal or characteristic of the American standard of life. In a period of rapidly advancing job and employment standards, we expect them to work at employment which, for all practical purposes, has no job standards."

It is the "job standards" promulgated by the Secretary under which Plaintiffs ask for relief. The standards are relevant not because they are self executing and apply of their own force to employing farmers. Rather, they become operative only through voluntary use of this Government Employment Service.'

Plaintiffs, twenty-nine migratory farm workers, six of whom appeal, alleged that in the fall of 1967 Naples Farms, Inc., through Raymond Creel, the superintendent, sought to take advantage of the recruitment service provided by the Florida State Employment Service and the United States Employment Service. The requisite forms were filled out and the request for workers-"Clearance Order"--was eventually sent through the interstate facilities of the United States Employment Service to Texas. In Texas the Texas State Employment Service forwarded the request to Plaintiff Pete Gomez "7 in Edinburg, Texas.

Plaintiffs also allege that in response to the request they went to Florida to accept the jobs. When they arrived, however, they found that the wages were lower than those called for in the regulations and the housing was woefully inadequate and far below the requirements 18 that should have been met before the request or "Clearance Order" had been processed. The list of grievances is long : There was no electricity in most cabins. None of the cabins had running water and there were no working toilets." There were no facilities for garbage pick-up or disposal. There was no access to drinking water." There were no workable showers. And none of the cabins had any heat at all."

15 Id. quoting report of the President's Commission, "Migratory Labor in American Agriculture" (1951). See also references to other sources. Id. n. 1.

10 The Congress has often left the farmer free from the general regulation applicable to other segments of our economy. See, e.g. Fair Labor Standards Act of 1938, 29 U.S.C.A. $201. et seq., 213 and Walsh-Healey Act, 41 U.S.C.A. §§ 35 et seq., 43. Farmers who choose to acquire their necessary labor supply from other sources, and not use the resources of the Federal Government, are free to subject workers to any conditions the laissez-faire economy and local laws will allow.

17 Gomez is apparently a crew boss or crew chief who organizes groups of workers and delivers a specific number of workers to a particular employer upon demand,

18 The housing regulations that must now be compiled (see note 5, supra) with before a request for workers is supposed to be sent though the interstate channels of the U.S. Employment Service are found at 20 C.F.R. 620.1-.17.

10 The regulations now provide:

"(a) All housing sites shall be provided with electric service.

(b) Each habitable room and all common-use rooms, and areas such as: Laundry rooms, toilets, privies, hallways, stairways etc., shall contain adequate ceiling or walltype light fixtures. At least one wall-type electrical convenience outlet shall be provided in each individual living room.

(d) All wiring and lighting fixtures shall be installed and maintained in a safe condition." 20 C.F.R. § 620.10.

20 The regulations now provide:

"Excreta and liquid waste disposal.

(a) Facilities shall be provided and maintained for effective disposal of excreta and liquid waste. Raw or treated liquid waste shall not be discharged or allowed to accumulate on the ground surface.

(b) Where public sewer systems are available, all facilities for disposal of excreta and liquid wastes shall be connected thereto.

(c) Where public sewers are not available, a subsurface septic tank-seepage system or other type of liquid waste treatment and disposal system, privies or portable toilets shall be provided. Any requirements of the State health authority shall be complied with." 20 C.F.R. § 620.6.

The regulations now provide:

"(a) Durable, fly-tight, clean containers in good condition of a minimum capacity of 20 gallons, shall be provided adjacent to each housing unit for the storage of garbage and other refuse. Such containers shall be provided in a minimum ratio of one per 15

persons.

(b) Provisions shall be made for collection of refuse at least twice a week, or more often if necessary. The disposal of refuse, which includes garbage, shall be in accordance with State and local law." 20 C.F.R. § 620.14.

The regulations now provide:

"(a) An adequate and convenient supply of water that meets the standards of the State health authority shall be provided.

(b) A cold water tap shall be available within 100 feet of each individual living unit when water is not provided in the unit. Adequate drainage facilities shall be provided for overflow and spillage.

(See remainder of footnote at bottom of next page.)

It is also alleged that in February 1968 Plaintiff Gomez sought to rectify the situation. Believing that his proper avenue of redress was the Lee County Board of Health, he got Everett Cooper, a sanitarian for the Lee County Board of Health, to come to the campsite. Far from seeking compliance by the employer with the state health regulations or the regulations of the Secretary of Labor, however, Cooper threatened Gomez with a $500.00 fine for each offense if the houses were not repaired.

The basis of Plaintiff's complaint against the employees of the state employment agency is that they failed to meet the obligations imposed on them by the regulations. (See note 5, supra). It is directly charged that they made no attempt to determine whether Naples Farms would comply with the regulations and by this failure deprived Plaintiffs of the benefit of these regulations. Naples Farms is alleged to have intentionally deprived Plaintiffs of the protection of the regulations by misleading the State officials. Likewise, Cooper, the sanitarian, is a defendant because of Plaintiffs' claim that he intentionally deprived them of the protection of the regulations. Finally, Plaintiffs allege that all Defendants not only acted intentionally but that they acted jointly and as a part of a conspiracy. Since there is no diversity jurisdiction, the Plaintiffs, although their damages may be real, can obtain relief through the Federal Court only if damage was done to a federal right that the Federal Courts are empowered to protect. The existence of the federal right in this case turns on whether the Wagner-Peyser Act, 29 U.S.C.A. §§ 49 et seq., and the regulations of the Secretary of Labor promulgated pursuant to the Act bestow rights that the workers may assert, and if so, whether the Wagner-Peyser Act and the regulations created a federal remedy. Additionally, the claim is made under the civil rights acts that the rights created by the regulations and Act, are "privileges, or immunities secured by the laws" 25 of the United States.

We start with the proposition that there can be no doubt that the regulations of the Secretary of Labor were intended to protect the interest of the workers. The conditions were deplorable. (See note 14, supra, and accompanying text). There were no standards. The Secretary was concerned about preventing the use of the federal resources to help prolong these conditions and to subvert other efforts to improve the conditions of the workers. In words attributable to the Secretary of Labor, the regulations were said to be designed to prevent "the public employment service from being utilized to send workers over long distances to employment providing quarters dangerous to their health and safety."

13 The regulations now provide:

"(a) Bathing and handwashing facilities, supplied with hot and cold water under pressure, shall be provided for the use of all occupants. These facilities shall be clean and sanitary and located within 200 feet of each living unit.

(b) There shall be a minimum of one showerhead per 15 persons. Showerheads shall be spaced at least 3 feet apart, with a minimum of 9 square feet of floor space per unit. Adequate, dry dressing space shall be provided in common use facilities. Shower floors shall be constructed of nonabsorbent, nonskid materials and sloped to properly constructed floor drains. Except in individual family units, separate shower facilities shall be provided each sex. When common use shower facilities for both sexes are in the same building they shall be separated by a solid nonabsorbent wall extending from the floor to ceiling or roof, and shall be plainly designated "men" or "women" in English and in the native language of the persons expected to occupy the housing." 20 C.F.R. § 620.12. 24 The regulations now provide:

"(a) All living quarters and service rooms shall be provided with properly installed. operable heating equipment capable of maintaining a temperature of at least 68° F. if. during the period of normal occupancy the temperature in such quarters falls below 68°. (b) Any stoves or other sources of heat utilizing combustible fuel shall be installed and vented in such a manner as to prevent fire hazards and a dangerous concentration of gases. No portable heaters other than those operated by electricity shall be provided. If a solid or liquid fuel stove is used in a room with wooden or other combustible flooring, there shall be a concrete slab, insulated metal sheet, or other fireproof material on the floor under each stove, extending at least 13 inches beyond the perimeter of the base of the stove.

(c) Any wall or ceiling within 18 inches of a solid or liquid fuel stove or a stovepire shall be of fireproof material. A vented metal collar shall be installed around a stovepipe. or vent passing through a wall, ceiling, floor or roof.

(d) When a heating system has automatic controls, the controls shall be the type which cut off the fuel supply upon the failure or interruption of the flame or ignition. or whenever a predetermined safe temperature or pressure is exceeded." 20 C.F.R. § 620.9. Although the regulations cited in notes 19-24 were not in effect at the time this claim we do not regard the current regulations as providing significantly different standards. They are merely more specific. See note 5, supra. 42 U.S.C.A. § 1983, see note 33 and accompanying text, infra.

arose.

(Attorney General's opinion note 7, supra at 409). The Secretary's concern with workers, their wages, living and transportation conditions as being at the heart by the Attorney General's paraphrase:

"Concerning the proposed wage amendment, it is said that its purpose, like of the Secretary's purpose in promulgating more effective standards is attested that of the existing regulation, is to prevent the use of the interstate system as a vehicle for undermining prevailing wage rates in the area of employment. As to the transportation amendment, you advise me that like the wage proposal it seeks only equal treatment for employees referred through the interstate recruitment program”.

Attorney General's opinion, note 7, supra at 409.

Just as important as this "legislative" history in demonstrating the Secretary's purpose is the clear emphasis of the regulations themselves. (See note 5, supra). Who was to be protected by regulations controlling working conditions and wages of these farm laborers who worked for meager wages and under such barbaric conditions? The answer is plain, even though masked at times by euphemisms that cast the objective as avoiding conditions which would jeopardize the reputation or patronage of the employment service as just another private employment agency. Attorney General's opinion, note 7, supra, at 414.

[1] Thus from the "legislative" history and from the regulations themselves it is plain that they were intended to confer an interest upon migrant farm workers such as Plaintiffs here. There being no explicit indication in the regulations or the Act that the workers were to have the opportunity to protect such conferred interest is not decisive since the existence of such an explicit grant of a remedy is not necessary. A civil remedy may be given to those protected by statutes or regulations by implication. Its sources are broad, including the language and the apparent purpose of the Act and regulations, as well as its "legislative" history. See Note, Implying Civil Remedies From Federal Regulatory Statutes, 77 Harv.L.Rev. 205 (1963).

This implication of a private civil remedy was first recognized by the Supreme Court in 1916 in Texas & Pac. Ry. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874, where the Court held that an employee could recover damages under the Federal Safety Appliance Act. Since Rigsby civil remedies have been implied in areas ranging widely from airline regulations to control of the trading in corporate securities" and based upon regulations as well as statutes.

This Act, its setting and the regulations call imperatively for implied remedies here if the purpose of the regulations-the protection of migratory farm workers-is to be achieved. Experience proved the need for more and stringent standards. Standards were stated and stated in terms relating to workers, their pay and conditions of living and transportation. Who, more than the workers, would be the expected beneficiaries of them? What more effective way will there be to eradicate conditions so deplored? See Attorney General's opinion note 7, supra, at 409. What better way will there be to eliminate the problem of poor workers responding to "Clearance Orders", journeying hundreds of miles across the country to accept work and the advantage of the benefits promised by the laws of the United States only to find that the promise is a fraud? Absent an implied remedy, the workers have no protection. They would not have even the protection of a criminal sanction. And, civil suits under local concepts hardly meet these conditions.

It is unthinking that Congress, obviously concerned with people, would have left the Secretary with only the sanction of cutting off funds to the state. Moreover, the private civil remedy is a method of policy enforcement long honored explicitly in statutes and by implication with the help of courts. Congress more and more commits to individuals, acting as a private Attorney General, the effectua

See Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 1944, 323 U.S. 210, 213, 65 S. Ct. 235, 237, 89 L. Ed. 187, 193, under the Railway Labor Act, 45 U.S.C.A. § 151 et seq.

See e.g., Fitzgerald v. Pan American World Airways, 2 Cir., 1956, 229 F.2d 499: Mortimer v. Delta Airlines, N.D. Ill., 1969, 302 F.Supp. 276 [July 24, 1969].

See e.g., Hooper v. Mountain States See. Corp., 5 Cir., 1960, 282 F. 2d 195; Errion v. Connell, 9 Cir., 1956, 236 F. 2d 447.

It has often been held that civil remedies may be implied from regulations, as well as statutes. See, e.g., Hooper v. Mountain States Sec. Corp., 5 Cir., 1960, 282 F. 2d 195. 200-201; Mortimer v. Delta Airlines, N.D. Ill., 1969, 302 F.Supp. 276 [July 24, 1969].

tion of public rights through relief to individuals. See Pettway v. American Cast Iron Pipe Co., 5 Cir., 1969, 411 F.2d 998; Jenkins v. United Gas Corp., 5 Cir., 1968, 400 F.2d 28. (Cases under Title VII of the 1964 Civil Rights Act, 42 U.S.C.A. § 2000e-3(a)).

Nevertheless, Naples Farms, the employer, argues that even if there is a private civil remedy under the statute and regulations against the state officials, there is no such remedy against it since neither the regulations nor the statute imposes any duty on the employer. It is true that the basic obligaion for insuring that the housing and other working conditions meet the requirements of the regulations is placed on the state agency. (See note 5, supra). This does not mean, however, that the employer has no duty. It is, after all, the working, pay, living and transportation conditions of that requesting employer which the state agency is to check and certify. And, if the employment system is to be workable," he has a duty not to intentionally mislead the state officials. When he does so and receives workers he is implicated with such officials.

[2] It is just this type of intentional conduct Plaintiffs allege." Whether Plaintiffs can prove this claim is another matter," but the complaint is more than adequate to resist a motion to dismiss. Pred v. Board of Public Instruction, 5 Cir., 1969, 415 F.2d 851 and cases cited there at note 1.

[3] Defendant Cooper, the Lee County Sanitarian, also urges that there can be no private cause of action against him under the Wagner-Peyser Act and the regulations since he did not participate in any way with this employment service. But, it is not that simple. The complaint charges that Cooper knew that Plaintiffs were being deprived of housing and working conditions to which they were entitled. And, that he sought to deprive them of means of obtaining redress for their grievances.

Certainly, if Cooper did act in concert with the employer and other state officials, he is subject to similar sanctions. Moreover, the complaint asserts a

30 The great reliance that must be placed in the good faith of the employer is illus trated by a memorandum sent by the Department of Labor to all State employment security agencies on July 26, 1967. The memorandum explained the regulations and in part provided:

"The State agency has the basic responsibility of assuring that all housing used, or to be used, for workers recruited through the interstate clearance process is inspected. However, the workload imposed by this policy may preclude State agency inspection of each unit on a timely basis. Employer certifications and the assistance of other respon sible State and/or local agencies may therefore be used to reduce State agency work loads. To assure that the responsibility imposed by the Secretary's regulations has been met, however, State agency personnel must inspect as large a percentage of affected employer housing as possible. Where an agreement with a cooperating agency provides for inspection of all farm labor housing, and such agency has an acceptable inspection program, inspection reports supplied by such agencies may be accepted in lieu of an inspection by the State agency. (Employer certification and inspection by other agencies are explained below.)"

31 Par. 14 of Plaintiffs' complaint provides:

"14. Sometime before Oct. 30, 1967, Defendant Creel, seeking the gratuitous benefits of the procedures for the interstate recruitment of agricultural workers by the Florida State Employment Service, prepared a clearance order. He knew at the time he prepared this form that the housing he designated in his order did not comply with regulatory standards of 20 CFR § 602.9 (d), nor did he have any intention of bringing the housing into compliance with law. Further, he intended that he would not pay the minimum wage required by 29 U.S.C.A. 201 et seq., or the wages and hours represented in the clearance order."

Plaintiffs also allege that all Defendants were a part of a conspiracy to deprive them of the benefits of the regulations and, in an attempt to state a cause of action under 42 U.S.C.A. 1985, to deprive them of equal protection of the laws. The allegations of conspiracy appear in par. 20 of Plaintiffs' complaint.

"20. At all times relevant the named Defendants acted under color of the statutes, ordinances, regulations, customs, or usages of the State of Florida and its legal subdivisions and Defendants Shebel, Moss, Tooke, Bull, and Cooper [the employees of the State agency] did act in their official capacities as officers under the laws of the State of Florida. At all times relevant the Defendants acted jointly in concert and in conspiracy with one another causing Plaintiffs to be deprived of their contractual and federally guaranteed rights."

Defendants contend that the allegations are not specific enough to state a claim. In support of this proposition they rely upon such cases as Powell v. Workmen's Compensation Board, 2 Cir., 1964, 327 F.2d 131 and Neff v. World Publishing Co., 8 Cir., 1965, 349 F.2d 235, 257. The idea that the requirement for specificity in the pleading of conspiracy is like that for pleading fraud is not followed by us. See Pred v. Board of Public Instruction, 5 Cir., 1969. 415 F.2d 851, 854 n. 11: Due v. Tallahassee Theatres, Inc., 5 Cir., 1964, 333 F.2d 630, 631. The remedy is not dismissal, which halts the proceedings at the courthouse door. The remedy is full use of flexible discovery. Cf. Surowitz v. Hilton Hotels Corp. 1966, 383 U.S. 363, 86 S.Ct. 845, 15 L.Ed. 2d 807.

bold, flagrant retaliation against Plaintiffs for Gomez having sought redress. This type of coercive retaliation, for which appropriate remedies have been offered, has traditionally been in violation of similar statutes setting “job standards" in other areas. See e.g., Nash v. Florida Indus. Comm'n, 1967, 389 U.S. 235, 238, 88 S.Ct. 362, 365, 19 L.Ed.2d 438, 442 (NLRA); Mitchell v. Robert De Mario Jewelry, Inc., 1960, 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (FLSA); Pettway v. American Cast Iron Pipe Co., 5 Cir., 1969, 411 F.2d 998, 1005–1007 (Title VII of the 1964 Civil Rights Act). At this stage, we see no reason why such conduct does not give rise to relief here.

We are not, however, limited to the existence of an implied civil remedy under these migratory-labor regulations to hold that Plaintiffs have stated a claim for which relief can be granted against either Naples Farms, Mr. Cooper, or the employees of the Florida State Employment Agency. Under the Civil Rights Acts, Congress has provided a general statute giving a civil remedy to those persons who are deprived "under color of law" of "any rights *** secured by the Constitution and laws [of the United States]." 42 U.S.C.A. § 1983.

[4] The state action necessary under § 1983 clearly exists as to the employees of the Florida State Employment Agency and the Lee County Sanitarian, Mr. Cooper. Moreover, no difficulty in regards to state action arises as to Naples Farms in view of the positive charges that must be credited.

The complaint alleges-and with sufficient specificity (see note 32, supra)— that all defendants acted jointly and as a part of a plan or conspiracy to deprive Plaintiffs of the rights granted them by the regulations. (See note 32, supra). The Supreme Court in United States v. Price, 1966, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267, in construing 18 U.S.C.A. § 242, the criminal counterpart to § 1983, held that:

"Private persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law for purposes of the statute. To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents." 383 U.S. at 794, 86 S.Ct. at 1157, 16 L.Ed.2d at 272. See also Baldwin v. Morgan, 5 Cir., 1961, 287 F.2d 750.

Even with the necessary State action present for all parties, Defendants contend, and the District Court held, that § 1983 is not available to Plaintiffs since "the type of 'rights' which the plaintiffs alleged they were denied or deprived are not those protected under the Civil Rights Acts relied upon." Order of District Court dismissing complaint.

It is true that § 1983 has quite often been used as a means of protecting Constitutionally guaranteed rights, particularly in the area of equal protection of the Negro. But the language of this civil rights statute is broad: it is a violation of the statute to transgress "any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C.A. § 1983 (emphasis added). Moreover, the Supreme Court in Peacock v. City of Greenwood, 1964, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944, clearly indicated that § 1983 was applicable when statutory, as well as, constitutional "rights, privileges and immunities" were involved. The Court said: "Under 42 U.S.C.A. § 1983 *** the officers may be made to respond in damages not only for violations of rights conferred by federal equal civil rights laws, but for violations of other federal constitutional and statutory rights as well." 384 U.S. at 829-30, 86 S.Ct. at 1813, 16 L.Ed.2d at 958. See also, Sheridan v. Garrison, 5 Cir., 1969, 415 F.2d 699, at 705, 706.

Despite these authorities and the clear purport of the language of the statute, Defendants argue that § 1983 does not provide a basis for recovery. The argument

This was § 1 of the Civil Rights Act of 1871 and its provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage. of any State or territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other property proceeding for redress." 42 U.S.C.A. § 1983.

3 It warrants emphasis again that the use of the magic word "conspiracy" does not necessarily take it out of § 1983 and throw it into § 1985. On usual principles of agency persons may be held accountable for the acts of others under § 1983. Most times such a combination, concerted action, etc. would constitute "conspiracy", too.

See Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.

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