Bacilio Ruiz Torres; Jose Amador, on behalf of themselves and all other similarly situated persons, Plaintiffs-Appellees,
Mercer Canyons Inc., Defendant-Appellant.
and Submitted July 8, 2016 Seattle, Washington
from the United States District Court for the Eastern
District of Washington Stanley Allen Bastian, District Judge,
Presiding D.C. No. 1:14-cv-03032-SAB
D. Miller (argued), Michael T. Reynvaan, Frederick B. Rivera,
and William B. Stafford, Perkins Coie LLP, Seattle,
Washington, for Defendant-Appellant.
Jordan Isley (argued), Joachim Morrison, and David Solis,
Columbia Legal Services, Yakima, Washington; Adam J. Berger
and Martin S. Garfinkel, Schroeter Goldmark & Bender,
Seattle, Washington; for Plaintiffs-Appellees.
Before: A. WALLACE TASHIMA, and MILAN D. SMITH, JR., Circuit
Judges, and LESLIE E. KOBAYASHI, [*] District Judge.
Law / Class Certification
panel affirmed the district court's order certifying a
plaintiff class of domestic farm workers who alleged
violations of the Agricultural Workers' Protection Act
and Washington law.
plaintiffs alleged that the defendant farm employer failed to
inform them of the availability of agricultural work that was
performed by temporary foreign workers under the federal H-2A
visa program, and failed to pay domestic workers the same
wage as the foreign workers.
panel affirmed the district court's certification of an
Inaccurate Information class and an Equal Pay subclass. The
panel held that as to the Inaccurate Information class, the
district court did not abuse its discretion in finding common
questions under Fed.R.Civ.P. 23(a)(2) regarding a duty to
disclose information pertaining to H-2A jobs, nor in finding
that common issues predominated under Rule 23(b)(3). The
panel also affirmed the district court's findings of
commonality and typicality with regard to the Equal Pay
subclass, as well as the district court's finding of
typicality under Rule 23(a)(4).
SMITH, Circuit Judge:
Mercer Canyons, Inc. (Mercer) appeals the district
court's order certifying a class of domestic farm
workers, represented by Bacilio Ruiz Torres and Jose Amador
(collectively, Plaintiffs). Mercer operates a fruit and
vegetable farm near Prosser, Washington. In 2013, Mercer
participated in the federal H-2A program, which permitted
Mercer to hire foreign workers to fill temporary agricultural
positions at an hourly wage of $12.
brought a putative class action, claiming that Mercer had a
common policy or practice of failing to inform domestic farm
workers of the availability of H-2A work that paid $12 per
hour, in violation of the Agricultural Workers'
Protection Act (AWPA), 29 U.S.C. §§ 1831(e) and
1821(f), and the Washington Consumer Protection Act (CPA),
Wash. Rev. Code § 19.86.020. In addition, Plaintiffs
alleged that Mercer failed to pay its own domestic workers
$12 per hour when they carried out the same tasks as foreign
H-2A workers, in violation of AWPA and state wage laws.
district court certified an Inaccurate Information class and
an Equal Pay subclass, corresponding to Plaintiffs'
claims. We affirm the district court's class
AND PRIOR PROCEEDINGS
applied for, and was granted, permission to hire temporary
foreign workers under the federal H-2A program in order to
supplement its workforce for the 2013 season. In February
2013, the Department of Labor issued Mercer a Clearance
Order, which described the terms and conditions of
Mercer's participation in the H-2A program. Among other
things, the Clearance Order allowed Mercer to employ up to 44
foreign workers for temporary vineyard work from March 24 to
September 1, 2013. It also listed the specific types of tasks
the H-2A workers would perform, along with the hourly wage
they would receive ($12).
the conditions of its involvement in the H-2A program
obligated Mercer to recruit domestic labor to minimize the
number of foreign workers filling the 44 available positions.
See Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex.
rel. Barez, 458 U.S. 592, 596 (1982). Specifically,
Mercer was required to engage in the "positive
recruitment" of domestic workers from February 4 to
March 21, 2013 through routine recruitment practices, such as
telling former employees about H-2A jobs and
"solicit[ing] their return." 20 C.F.R. §
655.135(c), 655.150-154, 655.158. Furthermore, Mercer was
required to hire any qualified domestic worker who applied
for H-2A work, a requirement that continued through the first
half of the contract period, in this case, until June 15,
2013. See 20 C.F.R. § 655.135(a) & (d).
2013, Mercer maintained a call-back list to keep track of
workers who walked in seeking employment. The list, entitled
an "Employment Information Form, " allowed
prospective applicants to provide their names, phone numbers,
whether they had a driver's license, and relevant skills
or experience so Mercer could "contact [them] for future
employment opportunities." During the 45-day positive
recruitment period, almost 200 people entered their
information on this list.
Mercer hired only 22 domestic workers for the H-2A program.
Some workers were hired through an organization called
WorkSource, which provided job referrals. Of the remaining 22
positions available under the H-2A program, Mercer hired only
19 foreign workers. Those 19 workers arrived on May 2, 2013.
Their H-2A contract originally ran until September 1, 2013,
but was extended two weeks, until September 15, 2013.
the course of the H-2A program, Mercer realized that
additional labor was needed because the H-2A employees were
not completing the work fast enough. As a result, Mercer used
its own domestic workers to perform some H-2A tasks, such as
grapevine tying. It also sought the services of a labor
contractor, M&L, which brought in 44 more domestic
workers to help with H-2A tasks. Mercer was required to
provide a copy of the terms of the work contract or Clearance
Order to any worker who performed qualifying H-2A work during
the contract period. See 20 C.F.R. §§
655.122(q); 655.103(b) (defining "corresponding
employment"). In addition, all H-2A workers, including
any employees performing qualifying H-2A tasks, were entitled
to the same wages of $12 per hour. See 20 C.F.R.
Torres and Amador
Torres and Amador are domestic farm workers. Ruiz Torres was
a vineyard worker at Mercer in 2012. Ruiz Torres later
returned to work at Mercer from January 8 to September 6,
2013. During this period, Ruiz Torres claims to have
performed some qualifying H-2A work in Mercer's
vineyards. He alleges that he was sometimes paid $12 an hour
for this work, and sometimes not. Mercer did not provide Ruiz
Torres with either a copy of the Clearance Order or a written
work contract. Neither did it inform him about available H-2A
work paying $12 per hour.
March 19, 2013, during the positive recruitment period,
Amador walked into Mercer's front office with his wife
and father-in-law. All three were looking for seasonal
farmwork in Mercer's vineyards. Mercer did not tell
Amador about the availability of H-2A work for $12 per hour.
Instead, the front-office staff informed him that "the
chances of getting jobs were really low until the people from
. . . Mexico arrived, and they would have to see how many
spots were open." Ultimately, Amador decided that he
would not sign the employment call-back list, although his
wife and father-in-law did. Mercer did not contact any of
them about employment opportunities.
brought a putative class action in the Eastern District of
Washington, alleging that Mercer failed "to inform local
farm workers about the availability of $12 an hour vineyard
labor jobs." According to Plaintiffs, Mercer's
failure to disclose violated AWPA, 29 U.S.C. §§
1831(e) and 1821(f), and the CPA, Wash. Rev. Code §
19.86.020. In addition, Plaintiffs claimed that Mercer failed
to pay its domestic workers $12 per hour for qualifying H-2A
work, in violation of AWPA, 29 U.S.C. § 1832(a), and
1822(a), and Washington wage law, Wash. Rev. Code §
moved for summary judgment on Plaintiffs' individual
claims under AWPA, the CPA, and Washington state wage laws.
The district court denied summary judgment. It further denied
Mercer's motion for reconsideration, and Mercer's
request to certify the summary judgment order for
Plaintiffs moved to certify an Inaccurate Information class
and an Equal Pay subclass. The Inaccurate Information class,
numbering approximately 600 individuals, includes the
All domestic migrant and seasonal farm workers who: 1) were
employed as vineyard workers by Mercer Canyons in 2012; 2)
sought employment at Mercer Canyons in 2013 between February
4 and June 15, 2013; or 3) performed vineyard work at Mercer
Canyons between March 24 and September 15, 2013, and were not
referred by WorkSource.
this class, Plaintiffs identified an Equal Pay subclass,
see Fed. R. Civ. P. 23(c)(5), of approximately 200
individuals. This subclass is comprised of the following
All domestic and seasonal farm workers who performed vineyard
work between March 24 and September 15, 2013 for Mercer
Canyons, were paid less than $12 per hour, and were not
referred by WorkSource.
district court granted Plaintiff's motion for class
certification, and appointed Ruiz Torres and Amador as class
representatives. This timely appeal followed.
OF REVIEW AND JURISDICTION
jurisdiction pursuant to 28 U.S.C. § 1292(e). We review
the district court's class certification order for abuse
of discretion and the findings of fact upon which it relied
for clear error. Parsons v. Ryan, 754 F.3d 657, 673
(9th Cir. 2014). "An abuse of discretion occurs when the
district court . . . relies upon an improper factor, omits
consideration of a factor entitled to considerable weight, or
mulls the correct mix of factors but makes a clear error of
judgment in assaying them." Stearns v. Ticketmaster
Corp., 655 F.3d 1013, 1018 (9th Cir. 2011) (quoting
Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d
1168, 1171 (9th Cir. 2010)). When reviewing an order granting
class certification, "we accord the ...