Snake River Farmers' Ass'n v. Department of Labor

BOOCHEVER, Circuit Judge,

dissenting in part:

I agree with the majority that Bahena and Ballesteros lack standing. But because I *799believe Nagay-Jaime has shown an injury in fact traceable to the challenged wage rates and experience-reference requirements, and because his injury would be redressed by the injunctive and declaratory relief he requests, I would reverse the district court’s determination that Nagay-Jaime lacks standing.

Nagay-Jaime applied for irrigation work in Idaho with the SRFA on March 7, 1990, furnished the required reference, and encountered a twelve-day delay in receiving a job referral. He eventually was referred to an SRFA employer for an irrigation job to begin April 8, 1990, although other farmers had requested irrigation workers for an earlier date.1 For reasons unrelated to this lawsuit, the grower denied him the job. Nagay-Jaime testified at his June 1991 deposition that he applied to the SRFA for irrigation work in Idaho again in May 1991 and was not hired. He stated in a subsequent June affidavit that he continues to do irrigation work and remains interested in working for SRFA members.

As a worker who has twice applied for irrigation jobs with the SRFA and who continues to want to work for the SRFA, Na-gay-Jaime has established a prima facie case of injury by the cumbersome requirements of experience and reference. Although he satisfied those requirements, he alleges that they injured him by causing unreasonable delays. As one genuinely seeking employment, he has standing to challenge the productivity requirements, which affect the work he seeks, and the wage rates, which he claims are too low. His injury is far more “actual and imminent” than that of the individual plaintiffs in Lujan v. Defenders of Wildlife, — U.S.—, 112 S.Ct. 2130 (1992). The Lujan plaintiffs merely expressed their intent to return eventually to the areas affected by the challenged environmental policy, a possibility the Court found mere “ ‘some da/ intentions.” Id. at-, at 2138. There is no similar lack of specificity in Nagay-Jaime’s claims of injury. Not only has Na-gay-Jaime alleged he has been affected by the experience and reference requirements applied to him in the past, but those requirements, the productivity standards, and the low wage rates, affect the availability, quality, and wages of the jobs he now continues to seek in his chosen area of employment.

Nagay-Jaime also seeks relief that would redress his injury. The declaratory and in-junctive relief he asks for would make the work he seeks easier to get and more attractive and lucrative once obtained.

In my view, Nagay-Jaime clearly has shown harm to his particular employment opportunities, opportunities which he has sworn he will exploit. In Lujan, the Supreme Court heightened the requirements for finding an injury in fact sufficient for Article III standing when a plaintiff complains of the government’s unlawful failure to impose adequate regulations upon third parties. Lujan, — U.S. -, 112 S.Ct. at 2137. Under Lujan, however, standing is available if the plaintiff, rather than having a mere indefinite intention of using the resource put at risk by the defendant at some unidentified time in the future, indicates specific plans to use that particular resource, and can count him or herself among the injured. Id. See Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, ‘Injuries,’ and Article III, 91 Mieh.L.Rev. 163, 224 (1992). Nagay-Jaime’s continued attempts to find an irrigation job with the SRFA put him at a genuine risk of future injury from the requirements and wage rates about which he complains. Combined with his past injury, that risk establishes his standing.

I respectfully dissent.

. SRFA members staggered their dates of need for irrigation workers, beginning March 15. In his affidavit, Nagay-Jaime states that when he applied to the SRFA in 1990 a date of need earlier than April 3, 1990 (the date his job was to start) was available. (The record indicates the dates of need for irrigation workers commenced on March 15 in the years 1989 and 1991. There is no specific reference to the commencing date in 1990, but it can be assumed to be the same.) Although Nagay-Jaime, when asked through an interpreter whether the irrigation season had begun before April 3, 1990, responded that he did not know, it is apparent from the earlier dates of need filed by other farmers that irrigation work commenced earlier.