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Torres v. Mercer Canyons Inc.

United States Court of Appeals, Ninth Circuit

August 31, 2016

Bacilio Ruiz Torres; Jose Amador, on behalf of themselves and all other similarly situated persons, Plaintiffs-Appellees,
v.
Mercer Canyons Inc., Defendant-Appellant.

          Argued and Submitted July 8, 2016 Seattle, Washington

         Appeal 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

          Eric D. Miller (argued), Michael T. Reynvaan, Frederick B. Rivera, and William B. Stafford, Perkins Coie LLP, Seattle, Washington, for Defendant-Appellant.

          Lori 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.

         SUMMARY [**]

         Labor Law / Class Certification

         The 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.

         The 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.

         The 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).

          OPINION

          M. SMITH, Circuit Judge:

         Defendant 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.

         Plaintiffs 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.

         The district court certified an Inaccurate Information class and an Equal Pay subclass, corresponding to Plaintiffs' claims. We affirm the district court's class certification order.

         FACTS AND PRIOR PROCEEDINGS

         A. Background

         Mercer 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).

         One of 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).

         In 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.

         Ultimately, 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.

         During 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. §655.122(a).

         B. Ruiz Torres and Amador

         Ruiz 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.

         On 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.

         C. Procedural History

         Plaintiffs 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 § 49.52.050.

         Mercer 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 interlocutory appeal.

         Subsequently, Plaintiffs moved to certify an Inaccurate Information class and an Equal Pay subclass. The Inaccurate Information class, numbering approximately 600 individuals, includes the following members:

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.

         Within 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 members:

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.

         The district court granted Plaintiff's motion for class certification, and appointed Ruiz Torres and Amador as class representatives. This timely appeal followed.

         STANDARD OF REVIEW AND JURISDICTION

         We have 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 ...


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