FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE GUADALUPE PEREZ-FARIAS;
JOSE F. SANCHEZ; RICARDO
BETANCOURT, and all other No. 10-35397
similarly situated persons, D.C. No.
Plaintiffs-Appellants, 2:05-cv-03061-
v.
RHW
Eastern District of
GLOBAL HORIZONS, INC; JANE DOE
ORIAN; PLATTE RIVER INSURANCE Washington,
COMPANY; VALLEY FRUIT Spokane
ORCHARDS, LLC; GREEN ACRE ORDER
FARMS, INC.; MORDECHAI ORIAN,
Defendants-Appellees.
Filed December 5, 2011
Before: Richard R. Clifton and N. Randy Smith,
Circuit Judges, and Edward R. Korman,
Senior District Judge.*
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 answer to the certified questions. This case is with-
drawn from submission until further order of this court or an
order declining to accept the certified questions. If the Wash-
*The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for Eastern New York, sitting by designation.
20659
20660 PEREZ-FARIAS v. GLOBAL HORIZONS
ington Supreme Court accepts the certified questions, the par-
ties 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 Washing-
ton Supreme Court questions of law regarding the proper
interpretation of the Washington Farm Labor Contractor Act
(FLCA), in particular Washington Revised Code
§ 19.30.170(2). No published decision of either the Washing-
ton 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 in part III of this
order. Our phrasing of the issues is not meant to restrict the
court’s consideration of the case, and “[w]e acknowledge that
the Washington Supreme Court may, in its discretion, refor-
mulate the question[s].” Parents Involved in Community
Schools v. Seattle School Dist, No. 1, 294 F.3d 1085, 1087
(9th Cir. 2002) (internal quotation marks omitted). Should the
Washington Supreme Court decline certification, “we will
resolve the issue[s] according to our perception of Washing-
ton law.” Id.
II.
Jose Guadalupe Perez-Farias, Jose F. Sanchez, and Ricardo
Betancourt (Workers) are deemed the petitioners in this
request because the Workers appeal the district court’s find-
ings on these issues. The caption of the case is:
PEREZ-FARIAS v. GLOBAL HORIZONS 20661
JOSE GUADALUPE PEREZ-FARIAS; JOSE F. SAN-
CHEZ; RICARDO BETANCOURT, and all other similarly
situated persons, Plaintiffs-Appellants,
v.
GLOBAL HORIZONS, INC.; JANE DOE ORIAN;
PLATTE RIVER INSURANCE COMPANY; VALLEY
FRUIT ORCHARDS, LLC; GREEN ACRE FARMS, INC.;
MORDECHAI ORIAN, Defendants-Appellees.
The names and addresses of counsel for the parties are as
follows:
Matthew Geyman, Phillips Law Group PLLC, Seattle, WA;
Lori Jordan Isley, Amy Crewdson, and Joachim Morrison,
Columbia Legal Services, Yakima, WA, for Plaintiffs-
Appellants.
Brendan V. Monahan and Justo G. Gonzalez, Stokes Law-
rence Velikanje Moore & Shore, Yakima, WA, for
Defendants-Appellees Valley Fruit Orchards, LLC and Green
Acre Farms, Inc.
Matthew S. Gibbs, Los Angeles, CA, for Defendant-
Appellee Mordechai Orian.
Cynthia Louise Rice, California Legal Assistance Founda-
tion, Sacramento, CA, for amici curiae California Rural Legal
Assistance Foundation, National Employment Labor Project,
and Pineros y Campesinos Unidos del Noroeste.
James S. Elliott, Velikanje Halverson, Yakima, WA, for
amici curiae Washington State Horticultural Association,
Yakima Valley Growers-Shippers Association, Wenatchee
Valley Traffic Association, Washington Farm Labor Associa-
tion, and Washington Growers League.
20662 PEREZ-FARIAS v. GLOBAL HORIZONS
III.
The questions of law to be answered are:
(1) Does the FLCA, in particular Washington Revised
Code § 19.30.170(2), provide that a court choosing to award
statutory damages: (a) must award statutory damages of $500
per plaintiff per violation; or (b) has discretion to determine
the appropriate amount to award in damages from among a
range of amounts, up to and including statutory damages of
$500 per plaintiff per violation?
(2) If the FLCA provides that a court, choosing to award
statutory damages, must award statutory damages of $500 per
plaintiff per violation, does that violate Washington’s public
policy or its constitutional guarantees of due process?
(3) Does the FLCA provide for awarding statutory damages
to persons who have not been shown to have been “ag-
grieved” by a particular violation?
IV.
The statement of facts is as follows:
The Workers brought this action, as class representatives,
against Global Horizons, Inc. (Global), Green Acre Farms,
Inc., Valley Fruit Orchards, LLC (collectively Growers) and
the Platte River Insurance Company on July 12, 2005. In their
third amended complaint, the Workers alleged that the Grow-
ers and Global: (1) violated the Migrant and Seasonal Agri-
cultural Workers Protection Act (AWPA), 29 U.S.C. §§ 1801-
1872; (2) violated the FLCA, Washington Revised Code
§§ 19.30.10 to 19.30.902; (3) wrongfully withheld wages
under Washington Revised Code § 49.52.050; and (4) dis-
criminated against the Workers based on race, in violation of
42 U.S.C. § 1981 and the Washington Law Against Discrimi-
nation, Washington Revised Code §§ 49.60.010 to 49.60.505.
PEREZ-FARIAS v. GLOBAL HORIZONS 20663
The district court ultimately certified three subclasses, rep-
resented by the Workers, to pursue this action: (1) the Denied
Work Subclass (397 local workers denied employment by
Global in 2004); (2) the Valley Fruit Subclass (146 local
workers hired by Global to work at Valley Fruit’s orchards in
2004); and (3) the Green Acre Subclass (107 local workers
hired by Global to work at Green Acre’s orchards).1
The federal H-2A temporary agricultural program allows
employers to hire nonimmigrant foreign workers (guest work-
ers) to perform agricultural labor, but only if there are not
enough local workers to do the work.2 See 8 U.S.C.
§§ 1101(a)(15)(H)(ii), 1188; 20 C.F.R. §§ 655.100 to
655.185. The Workers’ allegations arose from the Growers’
decision to use Global to supply the Growers with guest
workers for the 2004 growing season under the H-2A pro-
gram. Global allegedly recruited and hired some guest work-
ers before obtaining approval from the Department of Labor
and without first obtaining a farm labor contractor’s license
from Washington State. The Workers also alleged that Global
and the Growers either fired local workers or withdrew offers
to hire local workers in an effort to make room for the guest
workers.
The Workers requested partial summary judgment on the
FLCA and AWPA claims on May 25, 2007. The district court
granted the motion for partial summary judgment, finding
1
The district court based its final statutory damages award of approxi-
mately $235,000 on these revised class member numbers. For the initial
statutory damages award of $1,857,000, the class member numbers were
different.
2
Agricultural employers may bring in guest workers under the H-2A
program if the United States Department of Labor certifies that a labor
shortage exists and that the wages of local workers will not be adversely
affected. See 8 U.S.C. § 1101(a)(15)(H)(ii)(a); 20 C.F.R. §§ 655.100 to
655.185. Guest workers may not be employed in the United States unless
the employer has obtained prior certification from the Department of
Labor. See 8 U.S.C. § 1188(a)(1).
20664 PEREZ-FARIAS v. GLOBAL HORIZONS
Global and the Growers had violated the FLCA and AWPA,
and set the other claims for trial. Because Global and the
Growers did not file responsive briefs to the Workers’ motion
for partial summary judgment, the court awarded the Workers
statutory damages of $500 per violation under the FLCA. The
total amount awarded was $1,857,000. The district court cal-
culated the amount of statutory damages awarded as follows:
U.S. Resident Workers Denied Work – 423 workers
x 4 violations x $500 = $846,000.00;
Valley Fruit – 169 workers x 7 violations x $500 =
$591,500.00;
Valley Fruit – 115 workers x 1 violation x $500 =
$57,500.00;
Valley Fruit – 24 workers x 1 violation x $500 =
$12,000.00; and
Green Acre – 100 workers x 7 violations x $500 –
$350,000.00.
The Growers requested reconsideration of damages. The
Growers admitted liability but challenged whether statutory
damages of $500 should be given for each violation. The dis-
trict court granted reconsideration and vacated the imposition
of statutory damages for the FLCA claim.3 The court set a
date for a bench trial to determine the issue of damages as to
that claim. In the same order, the court found Global’s discov-
ery abuses warranted entering case dispositive sanctions
against it as to certain discrimination claims. Thereafter, a
jury found Global liable for discrimination on the basis of
race and national origin and awarded damages.
The district court then held a bench trial on the damages
question. The court held that it had discretion under the FLCA
3
The presiding judge died before considering the motions for reconsid-
eration. The new presiding judge granted the motions.
PEREZ-FARIAS v. GLOBAL HORIZONS 20665
to award no damages or to award an amount between $0 and
$500 per violation. The court also stated that an award of
$500 per violation could be construed to (1) violate the Grow-
ers’ due process rights by mandating an award of “exorbitant
amounts of statutory damages,” and (2) “violate all notions of
fairness inherent in our judicial system.” In discussing its due
process and fairness concerns, the court distinguished
between technical violations of the FLCA, such as failing to
put contact information of the employer on pay stubs, and
substantive violations, which result in actual harm to the
worker.
The district court also rejected the Growers’ argument that
statutory damages were not warranted for some violations,
because the Workers could not show they were aggrieved.
The court had previously concluded that “class members were
aggrieved,” and the Workers were asking “for liquidated stat-
utory damages for class-wide claims.” Citing Six (6) Mexican
Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1310 (9th
Cir. 1990), the court determined that it did not “need to make
specific factual calculations of actual injury.”
Based on the factors outlined in Six (6) Mexican Workers,
the district court determined that an appropriate amount of
statutory damages was approximately $235,000.00. The dis-
trict court (using the revised class member numbers) calcu-
lated the amount of statutory damages awarded as follows:
Denied Work No. of Individual Total
Subclass Violation Members Award
Failure to Provide 397 $100 $39,700
Required
Disclosures
Providing False 397 $100 $39,700
and Misleading
Information:
transportation
benefits and
20666 PEREZ-FARIAS v. GLOBAL HORIZONS
production
standards
Employing H2-A 397 0 0
Workers
Failing to Employ 397 $150 $59,550
Total 397 $350 $138,950
Green Acre No. of Individual Total
Subclass Violation Members Award
Failure to Provide 107 $100 $10,700
Required
Disclosures
Providing False 107 $100 $10,700
and Misleading
Information:
transportation
benefits and
production
standards
Employing H2-A 107 0 0
Workers
Laying Off 107 $150 $16,050
in violation of
Clearance Order
Failure to Provide 107 $10 $1,070
Written
Reprimands
Failure to Provide 107 $10 $1,070
Adequate Pay
Statements – name
and address
Failure to Pay 72 [] [total of
Wages Due – $8,773.02
Deducting to Green Acre
Washington and Valley Fruit
Sales Tax subclass
members]
Total 107 $370 $39,590 [plus
PEREZ-FARIAS v. GLOBAL HORIZONS 20667
share of
Deducting
Sales Tax
award]
Valley Fruit No. of Individual Total
Subclass Violation Members Award
Failure to Provide 146 $100 $10,700
Required
Disclosures
Providing False 146 $100 $10,700
and Misleading
Information:
transportation
benefits and
production
standards
Employing H2-A 146 0 0
Workers
Laying Off in 146 $150 $21,900
violation of
Clearance Order
Failure to 146 $10 $1,460
Provide
Written
Reprimands
Failure to Provide 146 $10 $1,460
Adequate Pay
Statements – name
and address
Failure to 99 $10 $990
Provide Adequate
Pay Statements –
itemization
Failure to Pay 49 [] [total of
Wages Due – $8,773.02
Deducting to Green Acre
Washington and Valley Fruit
Sales Tax subclass
members]
20668 PEREZ-FARIAS v. GLOBAL HORIZONS
Failure to Pay 24 $100 $2,400
Wages Due – Not
paying Approved
Bin Rate of $19 in
Pear Harvest
Total $480 $49,610 [plus
share of
Deducting
Sales Tax
award]
Global and the Growers again requested reconsideration,
arguing that damages should be awarded only to class mem-
bers actually aggrieved. The district court denied the motion
for reconsideration. This appeal timely followed.
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 inter-
preted the relevant provisions of the FLCA, “is better quali-
fied to answer the certified question[s] in the first instance.”
See Parents Involved, 294 F.3d at 1092. Additionally, the
Washington Supreme Court’s authoritative answers are “nec-
essary . . . 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 certi-
fication and all relevant briefs and excerpts of record pursuant
to Washington Revised Code §§ 2.60.010 and 2.60.030.
IT IS SO ORDERED.