FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABELARDO SAUCEDO; FELIPE No. 13-35955
ACEVEDO MENDOZA; JOSE VILLA
MENDOZA; JAVIER SAUCEDO; D.C. No.
SANDRA SAUCEDO, Individually, and 2:12-cv-00478-
on behalf of all other similarly TOR
situated persons,
Plaintiffs-Appellees,
v.
JOHN HANCOCK LIFE & HEALTH
INSURANCE, CO.; TEXAS MUNICIPAL
PLANS CONSORTIUM, LLC,
Defendants,
NW MANAGEMENT AND REALTY
SERVICES, INC.; JOHN HANCOCK LIFE
INSURANCE COMPANY,
Defendants,
and
FARMLAND MANAGEMENT SERVICES,
Defendant-Appellant.
2 SAUCEDO V. FARMLAND MANAGEMENT
ABELARDO SAUCEDO; FELIPE No. 13-35996
ACEVEDO MENDOZA; JOSE VILLA
MENDOZA; JAVIER SAUCEDO; D.C. No.
SANDRA SAUCEDO, Individually, and 2:12-cv-00478-
on behalf of all other similarly TOR
situated persons,
Plaintiffs-Appellees,
v.
JOHN HANCOCK LIFE INSURANCE
COMPANY; JOHN HANCOCK LIFE &
HEALTH INSURANCE, CO.; TEXAS
MUNICIPAL PLANS CONSORTIUM,
LLC,
Defendants-Appellants,
and
FARMLAND MANAGEMENT SERVICES;
NW MANAGEMENT AND REALTY
SERVICES, INC.,
Defendants.
SAUCEDO V. FARMLAND MANAGEMENT 3
ABELARDO SAUCEDO; FELIPE No. 13-36022
ACEVEDO MENDOZA; JOSE VILLA
MENDOZA; JAVIER SAUCEDO; D.C. No.
SANDRA SAUCEDO, Individually, and 2:12-cv-00478-
on behalf of all other similarly TOR
situated persons,
Plaintiffs-Appellees,
ORDER
v.
JOHN HANCOCK LIFE INSURANCE
COMPANY; JOHN HANCOCK LIFE &
HEALTH INSURANCE, CO.; TEXAS
MUNICIPAL PLANS CONSORTIUM,
LLC; FARMLAND MANAGEMENT
SERVICES,
Defendants,
and
NW MANAGEMENT AND REALTY
SERVICES, INC.,
Defendant-Appellant.
Filed August 5, 2015
Before: Andrew J. Kleinfeld, Jacqueline H. Nguyen,
and Michelle T. Friedland, Circuit Judges.
4 SAUCEDO V. FARMLAND MANAGEMENT
SUMMARY *
Certification of Questions to State Supreme Court
The panel certified to the Washington Supreme Court
the following questions:
(1) Does the Washington Farm Labor Contractor Act,
in particular Washington Revised Code § 19.30.010(2),
include in the definition of a “farm labor contractor” an
entity who is paid a per-acre fee to manage all aspects of
farming—including hiring and employing agricultural
workers as well as making all planting and harvesting
decisions, subject to approval—for a particular plot of land
owned by a third party?
(2) Does the FLCA, in particular Washington Revised
Code § 19.30.200, make jointly and severally liable any
person who uses the services of an unlicensed farm labor
contractor without either inspecting the license issued by
the director of the Department of Labor & Industries to the
farm labor contractor or obtaining a representation from the
director of the Department of Labor & Industries that the
contractor is properly licensed, even if that person lacked
knowledge that the farm labor contractor was unlicensed?
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SAUCEDO V. FARMLAND MANAGEMENT 5
ORDER
We certify to the Washington Supreme Court the
questions set forth in Part III of this order.
Further proceedings in this court are stayed pending
receipt of the answers to the certified questions. These
cases, which were consolidated on appeal, are withdrawn
from submission until further order of this court or an order
declining to accept the certified questions. If the
Washington Supreme Court accepts the certified questions,
the parties will file a joint report six months after the date
of acceptance, and every six months thereafter, advising us
of the status of the proceeding.
I.
Pursuant to Washington Revised Code § 2.60.020, a
panel of the United States Court of Appeals for the Ninth
Circuit (before which this appeal is pending) certifies to the
Washington Supreme Court questions of law regarding the
proper interpretation of the Washington Farm Labor
Contractor Act (“FLCA”), in particular Washington
Revised Code § 19.30.010 and § 19.30.200. No published
decision of either the Washington Supreme Court or the
Washington appellate courts has interpreted the relevant
provisions of this statute to date, and the answers to the
certified questions are “necessary . . . to dispose of” this
appeal. Wash. Rev. Code § 2.60.020. We respectfully
request that the Washington Supreme Court answer the
certified questions presented below. Our phrasing of the
issues is not meant to restrict the court’s consideration of
the case, and “we acknowledge that the Washington
Supreme Court may, in its discretion, reformulate the
questions.” Perez-Farias v. Glob. Horizons, Inc., 668 F.3d
588, 589 (9th Cir. 2011) (alterations omitted). Should the
Washington Supreme Court decline certification, “we will
6 SAUCEDO V. FARMLAND MANAGEMENT
resolve the issues according to our perception of
Washington law.” Id. (alteration omitted).
II.
John Hancock Life & Health Insurance Co.; John
Hancock Life Insurance Company; Texas Municipal Plans
Consortium, LLC; Farmland Management Services; and
NW Management and Realty Services (Defendants) are
deemed the petitioners in this request because Defendants
appeal the district court’s conclusions on these issues. We
designate Defendants to file the first brief, pursuant to
Washington Rule of Appellate Procedure 16.16(e)(1). The
captions of the consolidated cases are:
ABELARDO SAUCEDO; FELIPE ACEVEDO
MENDOZA; JOSE VILLA MENDOZA; JAVIER
SAUCEDO; SANDRA SAUCEDO, Individually,
and on behalf of all other similarly situated
persons, Plaintiffs-Appellees,
v.
JOHN HANCOCK LIFE & HEALTH INSURANCE,
CO.; TEXAS MUNICIPAL PLANS
CONSORTIUM, LLC, Defendants,
NW MANAGEMENT AND REALTY SERVICES,
INC.; JOHN HANCOCK LIFE INSURANCE
COMPANY, Defendants,
and
FARMLAND MANAGEMENT SERVICES,
Defendant-Appellant;
ABELARDO SAUCEDO; FELIPE ACEVEDO
MENDOZA; JOSE VILLA MENDOZA; JAVIER
SAUCEDO; SANDRA SAUCEDO, Individually,
SAUCEDO V. FARMLAND MANAGEMENT 7
and on behalf of all other similarly situated
persons, Plaintiffs-Appellees,
v.
JOHN HANCOCK LIFE INSURANCE COMPANY;
JOHN HANCOCK LIFE & HEALTH INSURANCE,
CO.; TEXAS MUNICIPAL PLANS
CONSORTIUM, LLC, Defendants-Appellants,
and
FARMLAND MANAGEMENT SERVICES; NW
MANAGEMENT AND REALTY SERVICES, INC.,
DEFENDANTS; and
ABELARDO SAUCEDO; FELIPE ACEVEDO
MENDOZA; JOSE VILLA MENDOZA; JAVIER
SAUCEDO; SANDRA SAUCEDO, Individually,
and on behalf of all other similarly situated
persons, Plaintiffs-Appellees,
v.
JOHN HANCOCK LIFE INSURANCE COMPANY;
JOHN HANCOCK LIFE & HEALTH INSURANCE,
CO.; TEXAS MUNICIPAL PLANS
CONSORTIUM, LLC; FARMLAND
MANAGEMENT SERVICES, Defendants,
and
NW MANAGEMENT AND REALTY SERVICES,
INC., Defendant-Appellant.
The names and addresses of counsel for the parties are
as follows:
Lori Jordan Isley, Joachim Morrison, and Andrea L.
Schmitt, Columbia Legal Services, Yakima, WA, for
Plaintiffs-Appellees.
8 SAUCEDO V. FARMLAND MANAGEMENT
Christopher Glenn Emch and John Ray Nelson, Foster
Pepper PLLC, Spokane, WA, for Defendants-Appellants
John Hancock Life & Health Insurance, Co. and Texas
Municipal Plans Consortium, LLC.
John Ray Nelson, Foster Pepper PLLC, Spokane, WA,
for Defendant-Appellant John Hancock Life Insurance
Company.
Leslie R. Weatherhead and Geana Van Dessel, Lee &
Hayes, PLLC, Spokane, WA; Susan Felice DiCicco and
Ari M. Selman, Morgan, Lewis & Bockius LLP, New
York, NY, for Defendant-Appellant Farmland Management
Services.
Brendan V. Monahan and Sarah Lynn Wixson, Stokes
Lawrence Velikanje Moore & Shore, Yakima, WA, for
Defendant-Appellant NW Management and Realty
Services, Inc.
III.
The questions of law to be answered are as follows.
The second question is necessary to resolve this case only if
the first question is answered in the affirmative.
(1) Does the FLCA, in particular Washington Revised
Code § 19.30.010(2), include in the definition of a “farm
labor contractor” an entity who is paid a per-acre fee to
manage all aspects of farming—including hiring and
employing agricultural workers as well as making all
planting and harvesting decisions, subject to approval—for
a particular plot of land owned by a third party?
(2) Does the FLCA, in particular Washington Revised
Code § 19.30.200, make jointly and severally liable any
person who uses the services of an unlicensed farm labor
contractor without either inspecting the license issued by
SAUCEDO V. FARMLAND MANAGEMENT 9
the director of the Department of Labor & Industries to the
farm labor contractor or obtaining a representation from the
director of the Department of Labor & Industries that the
contractor is properly licensed, even if that person lacked
knowledge that the farm labor contractor was unlicensed?
IV.
The statement of facts is as follows:
John Hancock Life & Health Insurance Co. is owned by
John Hancock Life Insurance Company. At all times
relevant to this case, the John Hancock insurance
companies and Texas Municipal Plans Consortium, LLC
(together referred to as “Hancock”) owned the apple
orchards known as Alexander I, Alexander II, and
Independence in Yakima County, Washington.
Hancock leased all three orchards to Farmland
Management Services (“Farmland”) under two Master
Lease and Management Agreements, which were identical
in all material respects. Under the Master Leases,
Farmland received a “management fee” in exchange for
either operating and managing the orchards for Hancock or
subleasing the orchards to a third-party company for
operation and management. Hancock reimbursed all costs
incurred by Farmland to operate the orchards and collected
all profits from the farming operation. Farmland elected to
sublease the orchards to NW Management and Realty
Services (“NWM”) under an Orchard Management
Agreement. 1 NWM received a per-acre fee from Farmland.
Farmland reimbursed NWM for all operating costs and
1
As of July 2013, NWM was no longer in operation.
10 SAUCEDO V. FARMLAND MANAGEMENT
collected all profits. These costs and profits were then
passed along to Hancock under the Master Leases, so
ultimately Hancock paid for all of NWM’s costs and
collected all of the orchards’ profits (minus Farmland’s
management fee).
The Orchard Management Agreement between
Farmland and NWM required that NWM “operate and use
the orchard Properties for the sole purpose of conducting a
first-class agricultural operation.” The Agreement further
stated that NWM “will hire, employ, discharge and
supervise the work of all employees and independent
contractors performing labor and/or services on the
Properties. [NWM] shall be the employer of record of all
persons employed to perform work on the ‘Properties.’”
The Agreement left the details of managing the orchards
substantially to NWM’s discretion, including how to best
“perform and supervise all customary and necessary
farming operations including but not limited to planting,
training, irrigating, weed control, thinning, cultivating,
fertilizing, pruning, mowing, controlling insect and disease,
harvesting and other necessary and proper procedures.”
NWM was required to submit to Farmland a yearly Farm
Operating Plan, which would include NWM’s anticipated
budget for the coming year. Farmland would send this
budget to Hancock for approval, and Hancock routinely
approved it. Neither Farmland nor Hancock exerted any
control over NWM’s employment decisions, leaving NWM
to decide unilaterally how many people to hire, whom to
hire, and when or whether to terminate employment. Nor
would NWM’s fee be affected by these employment
decisions, such as how many people it hired.
Hancock and Farmland’s Master Leases required
Farmland to obtain any necessary licenses, or require any
third party hired to do so. Farmland represented to
SAUCEDO V. FARMLAND MANAGEMENT 11
Hancock’s representative Oliver Williams that it had done
so. At no point did NWM obtain a farm labor contractor
license from the Washington Department of Labor &
Industries.
Plaintiffs, a class of 722 former NWM employees who
worked for NWM in 2009, 2010, or 2011, sued Defendants
in 2012 in the Eastern District of Washington for violations
of the federal Migrant and Seasonal Agricultural Worker
Protection Act, 29 U.S.C. § 1801, et seq., and the FLCA,
Wash. Rev. Code § 19.30.010, et seq. The district court
certified the Plaintiffs’ class as to the FLCA claims, and all
other claims were settled and dismissed. The FLCA claims
allege that NWM violated the FLCA by failing to maintain
a farm labor contractor’s license and failing to make certain
disclosures to Plaintiffs that farm labor contractors are
required make. Plaintiffs allege that Farmland and
Hancock are jointly and severally liable with NWM for the
FLCA violations under Washington Revised Code
§ 19.30.200 because they used the services of an unlicensed
farm labor contractor without either inspecting NWM’s
license or asking the director of the Department of Labor &
Industries whether NWM was licensed.
Hancock and Farmland separately moved to dismiss the
FLCA claims against them, arguing that Washington
Revised Code § 19.30.200 applies only to those who
“knowingly” use the services of an unlicensed farm labor
contractor and that they did not know that NWM was
unlicensed. The district court denied both motions, holding
that the FLCA imposed an affirmative duty on Hancock
and Farmland to verify that NWM was properly licensed by
either inspecting NWM’s license or making an inquiry with
the director of the Department of Labor & Industries.
All Defendants then moved for summary judgment on
the ground that NWM was not a “farm labor contractor” as
12 SAUCEDO V. FARMLAND MANAGEMENT
defined in Washington Revised Code § 19.30.010(2)
because it was an “agricultural employer” that employed
agricultural workers only to work NWM’s farms. The
district court denied the motion, holding that although
NWM was an “agricultural employer,” “agricultural
employers” and “farm labor contractors” are not mutually
exclusive, and that agricultural employers “who are paid to
farm another’s land”—such as NWM—are required to
obtain licenses under the FLCA.
Plaintiffs then moved for summary judgment, asking
the court to hold as a matter of law that NWM was a farm
labor contractor under the FLCA, that NWM violated the
FLCA by failing to obtain a farm labor contractor’s license
and by failing to provide Plaintiffs with required
disclosures, and that Hancock and Farmland are jointly and
severally liable for NWM’s FLCA violations. The district
court granted Plaintiff’s motion for summary judgment,
finding that NWM was a farm labor contractor because it
engaged in employing agricultural workers “for a fee,” that
NWM therefore was required to comply with the FLCA but
did not, and that Hancock and Farmland were jointly and
severally liable for NWM’s violations because they did not
take the affirmative steps listed in Washington Revised
Code § 19.30.200 to determine whether NWM was
licensed. The district court awarded Plaintiffs damages of
$500 per class member per violation per year worked,
regardless of the class member’s immigration status, for a
total of $1,004,000. The district court further held that
Plaintiffs were entitled to attorney fees under the FLCA,
which permits a court to “award to the prevailing party, in
addition to costs and disbursements, reasonable attorney
fees at trial and appeal.” Wash. Rev. Code § 19.30.170(1).
Defendants timely appealed the district court’s entry of
judgment and damage award.
SAUCEDO V. FARMLAND MANAGEMENT 13
V.
Because of the complexity of these state law issues and
because of their significant policy implications, we believe
that the Washington Supreme Court, which has not yet
interpreted the relevant provisions of the FLCA, “is better
qualified to answer the certified questions in the first
instance.” See Perez-Farias, 668 F.3d at 593 (alteration
omitted). Additionally, the Washington Supreme Court’s
authoritative answers are “necessary . . . in order to dispose
of [this] proceeding.” Wash. Rev. Code § 2.60.020.
VI.
The Clerk of the Court is hereby directed to
immediately transmit to the Washington Supreme Court,
under official seal of the Ninth Circuit, a copy of this order
and request for certification and all relevant briefs and
excerpts of record pursuant to Washington Revised Code
§ 2.60.010 and § 2.60.030.
IT IS SO ORDERED.
Chief Judge Sidney R. Thomas
U.S. Court of Appeals for the Ninth Circuit