The Department, in an attempt to comply with a court order
in NAACP v. Brennan, 360 F. Supp. 1006 (D.D.C. 1973),
established Department guidelines which included a system of
monitoring and field reviews which state agencies were to
follow. An extensive complaint procedure was established which
provided a forum for resolution of disputes first with the
local employment service, then the state employment service and
ultimately the Department of Labor if the complaint had not
been resolved earlier. Rules embodying these matters were first
integrated into the regulations in 1977.
The Secretary's "duty" must be analyzed at two points in the
process. The first is when the employer seeks to use the
Interstate Recruitment system; the second, after the employer
has allegedly used the system improperly.
In the instant situation, Stokely-Van Camp's clearance order
V-III-8 was presented and approved by the state agencies. In
that order, Stokely described the conditions of employment
which included the crop, nature of the work, the wage rate,
anticipated hours, housing, numbers of workers required,
transportation arrangements and scheduled dates of employment.
It is uncontroverted that the federal defendants examined the
order. They determined that the order "satisfied the
requirements of the United States Employment Service for
interstate clearance and authorized their transmittal to
Texas" (Answer, ¶ 1.(g)), and it is not contended that the
order on its face disclosed any violation of federal
The defendant argues that they owed the plaintiffs no more;
the plaintiffs maintain that their refusal to do more failed
to protect them from the employer's alleged abuses which
amounted to misrepresentations of material terms and
The statute and regulations clearly establish the federal
defendants' supervisory role. Those defendants urge that the
1977 changes in regulations narrowed the scope of their duties
by specifying that they are not guarantors of the accuracy or
truthfulness of the information contained in job orders. But
that previously was true. The representations in the clearance
order are those of the employer which the federal defendants,
in their supervisory role, are entitled to rely upon if they
facially conform to federal requirements. The defendants met
their initial statutory obligations when they examined the
face of the Stokely clearance order before approving it.
That supervisory role presupposes the existence of an
effective monitoring system, however, triggered by complaints
that an employer has failed to comply with the facially
conforming representations of a clearance order. In NAACP v.
Brennan, supra farm workers and farm worker organizations
challenged the Department of Labor's supervision of the
Interstate Recruitment System. A consent decree entered in that
case required establishment of a formal complaint procedure
with Regional Office directives providing guidelines to the
state. In this court's view, the Department's statutory duty to
ascertain that state public employment offices conducted
themselves in accordance with rules and regulations prescribed
by the Secretary includes a duty to ensure that an effective
complaint resolution procedure exists.
The central question, then, is whether the defendants have
failed to properly perform that duty. To maintain an action
for injunctive relief, plaintiffs must show that the
defendants did not fulfill their obligations in 1976 and that
there has continued to be a failure to provide an effective
complaint resolution procedure despite the mechanisms
established by the new regulations.
Courts have found jurisdiction to enforce governmental duties
under a mandamus theory and § 10 of the Administrative
Procedure Act. In Peoples v. United States Dept. of
Agriculture, 427 F.2d 561 (D.C. Cir. 1970), the court discussed
the Mandamus and Venue Act of 1972, 28 U.S.C. § 1361 stating
was intended to permit District Courts generally
to issue appropriate corrective orders where
federal officials are not acting within the zone
of their permissive discretion but are abusing
their discretion or otherwise acting contrary to
law, and hence to entertain a civil action under
§ 10 of the A.P.A.
See also Brown v. Lynn, 385 F. Supp. 986 (N.D.Ill. 1974)
rehearing denied 392 F. Supp. 559 (N.D.Ill. 1975).
At the time the lawsuit was filed, the defendants had
"guidelines" for resolution of complaints. Those guidelines
provided that after a complaint is lodged in a local office a
determination must be made with a right of appeal to the state
monitor. He had 20 days to resolve it. The complainant could
then appeal it to the Regional Monitor of the Department of
Labor. These guidelines were not part of the regulations and
were apparently published in various loose leaf reporter
services. It is unclear whether plaintiffs were ever apprised
that a formal complaint system existed.
It is undisputed that the plaintiffs complained to Mr.
Samuels, a Department of Labor employee, about Stokely's
alleged failure to fulfill the terms and conditions of
employment specified in various clearance orders. The
defendants state Mr. Samuels advised the Legal Assistance
attorney to contact the Illinois State Monitor Advocate to
lodge a complaint in accordance with current policies and to
contact him again if not satisfied with the response she gave
them. Defendants' Answer ¶ 1.(h). Plaintiffs did not submit an
affidavit on this point but state in their brief that "they
received no reply to their complaint from defendant Department
of Labor." (Plaintiff's memo in opposition to federal
defendant's motion for judgment on the pleadings, p. 3). In any
event, the plaintiffs submitted a complaint regarding Stokely
violations to Joyce Moore, the Illinois State Monitor Advocate
(Plaintiff's Exhibit 2). She responded that their initial
investigation did not reveal the company was in violation of
the conditions stipulated in the job order. (Plaintiff's
Shortly after this lawsuit was filed, the Department of
Labor amended its regulations. The complaint procedures
address the same concerns but do so in a more extensive
manner. Those procedures became a part of the 1977 published
regulations. Under those regulations, 20 CPR 658.410, the
local office has 15 working days to resolve the complaint
informally. If it is not resolved, it is referred to the state
office, which has 30 working days to resolve it. The
complainant then has a right to request a hearing by a state
hearing official with a right of appeal to the federal
regional office. The Department can investigate further and
try informal resolution. If the complainant is still
dissatisfied, he may request a hearing, the result of which is
the final decision of the Secretary.
The defendants argue that the plaintiffs are required to
exhaust those new procedures before advancing their claims and
that, in any event, those new procedures moot plaintiffs'
claims. The issue before the court, however, is not one
narrowly related to a specific grievance. Rather, plaintiffs
claim that, despite a formal procedure mandated by guidelines,
no effective complaint resolution procedure existed in 1976.
Their attack is not upon structure but upon implementation.
The procedures mandated by the 1972 regulations, if
appropriately implemented, would in all probability make any
injunctive relief inappropriate even if plaintiffs prevail
upon their claims of administrative inaction in 1976. If the
federal defendants have, since 1976, developed a system which
effectively resolves complaints, plaintiffs are no longer
entitled to injunctive relief. At this juncture, however, it
is undetermined whether, as plaintiffs contend, the complaint
resolution in 1976 (and thereafter) existed on paper but not
in fact or whether, as defendants urge, there was
and continues to be a complaint resolution procedure which,
despite an occasional problem, generally functions
effectively. There thus remains a disputed question of fact
respecting administrative compliance with its own procedures.
See Abbott Laboratories v. Harris, 481 F. Supp. 74 (N.D.Ill.
The plaintiffs also seek certification of a class of all
migrant workers who have been or will be recruited under the
Interstate Recruitment System in Illinois. Under Rule
23(b)(2)*fn2 the court finds such a class too broad but will
certify one which includes migrant workers who have been
recruited under the Interstate Recruitment System in Illinois.
This group consists of several thousand individuals. That
number is sufficient to meet the numerosity requirement in
Rule 23 which specifies that joinder of all members is
impracticable. The common issue relevant to each of these
members is whether the Department adequately performed its
duty to supervise the Interstate Recruitment system. The named
plaintiffs seek the same relief as all class members,
rendering their claims typical. The plaintiffs have the same
interests in obtaining proper administration of the Interstate
Recruitment System as do the class members, rendering them
representative of the class. The plaintiffs' attorneys are
experienced litigators in this area and thus can provide
adequate services to plaintiffs.
The defendant argues that a class is not necessary because
the relief granted to an individual plaintiff will be
applicable to all others. They also argue that the relief
granted will be identical whether or not a class is certified.
Although these arguments have been found persuasive in other
circuits, see e.g. Martinez v. Richardson, 472 F.2d 1121, 1127
(10th Cir. 1973); Craft v. Memphis Light, Gas & Water Division,
534 F.2d 684 (6th Cir. 1976); aff'd 436 U.S. 1, 98 S.Ct. 1554,
56 L.Ed.2d 30 (1978); Ihrke v. Northern States Power Co.,
459 F.2d 566, 572 (8th Cir.) vacated on other grounds,
409 U.S. 815, 93 S.Ct. 66, 34 L.Ed.2d 72 (1972) the Seventh Circuit
has specifically rejected denial of class certification because
it is not necessary. In this circuit, a class will be certified
if the requirements of Rule 23 have been met. Vergara v.
Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978), cert. denied
441 U.S. 905, 99 S.Ct. 1998, 60 L.Ed.2d 373 (1979); Vickers v.
Trainor, 546 F.2d 739, 747 (7th Cir. 1976); Fujishima v. Bd. of
Education, 460 F.2d 1355, 1360 (7th Cir. 1975). Since they have
been met here, a class will be certified under Rule 23(b)(2).
For the above stated reasons, both motions for summary
judgment as to Count I are denied.
Count II of the complaint alleges violations of plaintiff's
rights under 42 U.S.C. § 1983, the Civil Rights Act of 1871 and
the Supremacy Clause. The defendant properly asserts that
42 U.S.C. § 1983 applies only to actions by state officials "under
color of state law." Roots v. Callahan, 475 F.2d 751 (5th Cir.
1973) and thus has no bearing on the acts of federal agencies
The Supremacy Clause is generally used to invalidate state
statutes or regulations which are found to be inconsistent
with the Constitution on laws of the United States. Swift & Co.
v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965).
Plaintiffs have not demonstrated how their claim fits within
Therefore, defendants' motion for judgment on the pleadings
will be granted as to Count.II of plaintiff's complaint.