Estados Unidos Mexicanos v. DeCoster

United States Court of Appeals
For the First Circuit

No. 99-2170

ESTADOS UNIDOS MEXICANOS,

Plaintiff, Appellant,

LUIS RAMIREZ, ET AL.,

Plaintiffs,

v.

AUSTIN J. DECOSTER, D/B/A/ DECOSTER EGG FARM, D/B/A/ AUSTIN J.
DECOSTER CO.; QUALITY EGG OF NEW ENGLAND, LLC; MAINE AG, LLC,

Defendants, Appellees,

MAINE CONTRACT FARMING, LLC, ET AL.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
 Karen Frink Wolf, with whom Harold J. Friedman, Sally A. Morris,
and Friedman Babcock & Gaythwaite were on brief, for appellant Estados
Unidos Mexicanos.
Rita H. Logan, with whom Timothy J. O'Brien, William C. Knowles,
and Verrill & Dana LLP were on brief, for appellee Austin J. DeCoster,
d/b/a/ DeCoster Egg Farm, d/b/a/ Austin J. DeCoster Co.
Timothy H. Somers, with whom Michael E. Cassidy and Hoff, Curtis,
Pacht, Cassidy & Frame, P.C. were on brief, for appellees Quality Egg
of New England, LLC and Maine Ag, LLC.
Herman Schwartz and Bruce Goldstein on brief for amicus curiae
Farmworker Justice Fund, Inc.
Michael E. Malamut on brief for amicus curiae New England Legal
Foundation.

October 11, 2000
 LYNCH, Circuit Judge. Claims of deplorable working and

living conditions for migrant workers at DeCoster Egg Farms, a

large Maine employer, were made in a civil rights action filed

in May of 1998. The thrust of the complaint was that workers of

Mexican descent, be they American or Mexican citizens, were

treated harshly because of their Mexican background, and that

white, non-Mexican workers fared better. The primary cause of

action asserted violations of the workers' civil rights under 42

U.S.C. § 1981. The complaint also asserted other claims,

including claims of unsafe and unsanitary housing under the

Migrant and Seasonal Agricultural Worker Protection Act, 29

U.S.C. § 1801 et seq. The complaint was filed by fourteen

individuals, who proposed to represent a class of "all former

and current migrant farm workers of Mexican race and descent"

employed by Austin J. DeCoster and DeCoster Egg Farm.1

1 Austin J. DeCoster owned DeCoster Egg Farm individually
until 1997. Originally, the complaint named as defendants Mr.
DeCoster and two successor companies, Quality Egg of New
England, LLC, and Maine AG, LLC. Although plaintiffs later added
other successor companies, those companies did not move to
dismiss Mexico from the case and are not appellees in this
appeal.

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 The other plaintiff was the Government of Mexico, the

Estados Unidos Mexicanos, which said it was appearing in its

parens patriae capacity to protect its citizens and its own

quasi-sovereign interests. It is unusual for a foreign nation

to claim standing under the parens patriae doctrine; more common

is the appearance of other nations in suits to protect their own

distinct interests or as amicus curiae in actions that may

affect them. See, e.g., National Foreign Trade Council v.

Natsios, 181 F.3d 38 (1st Cir. 1999), aff'd sub nom. Crosby v.

National Foreign Trade Council, 120 S. Ct. 2288 (2000); United

States v. Nippon Paper Indus. Co., 109 F.3d 1 (1st Cir. 1997),

cert. denied, 522 U.S. 1044 (1998). Neither the Supreme Court

nor this court has addressed the question of whether the parens

patriae doctrine may be so employed by a foreign nation. The

district court dismissed Mexico as a plaintiff for lack of

standing. See Estados Unidos Mexicanos v. DeCoster, 59 F. Supp.

2d 120, 123-25 (D. Me. 1999). At Mexico’s request, final

judgment was entered as to this issue while the underlying

action of the fourteen individual plaintiffs proceeded.2 We

2 The district court has since denied class action
certification and granted defendants’ motion for summary

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review the determination of lack of standing de novo, see, e.g.,

Serpa Corp. v. McWane, Inc., 199 F.3d 6, 9 (1st Cir. 1999), and

affirm the dismissal of Mexico as a party to this action.

The Doctrine of Parens Patriae

"Parens patriae means literally 'parent of the country.'"

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600

(1982). The doctrine has developed as to States of the United

States. It creates an exception to normal rules of standing

applied to private citizens in recognition of the special role

that a State plays in pursuing its quasi-sovereign interests in

"the well-being of its populace." Id. at 602; see also Georgia

v. Tennessee Copper Co., 206 U.S. 230, 237 (1907) (a State "has

an interest independent of and behind the titles of its

citizens, in all the earth and air within its domain").3 It is

a judicially created exception that has been narrowly construed.

The most complete explanation of the parens patriae doctrine in

judgment as to some of plaintiffs’ claims. See Ramirez v.
DeCoster, 194 F.R.D. 348 (D. Me. 2000).
3 A State's quasi-sovereign interest is thus distinct from, for
example, its sovereign interest in protecting and maintaining its
boundaries and its proprietary interest in owning land or conducting a
business venture. See Snapp, 458 U.S. at 601-02.

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its modern incarnation,4 as applied to the States of this

country, appears in the Supreme Court's opinion in Snapp:

In order to maintain [a parens patriae] action, the State
must articulate an interest apart from the interests of
particular private parties, i.e., the State must be more
than a nominal party. The State must express a
quasi-sovereign interest. Although the articulation of such
interests is a matter for case-by-case development --
neither an exhaustive formal definition nor a definitive
list of qualifying interests can be presented in the
abstract -- certain characteristics of such interests are
so far evident. These characteristics fall into two general
categories. First, a State has a quasi-sovereign interest
in the health and well-being -- both physical and economic

4 The parens patriae action has its roots in the common-
law concept of the "royal prerogative," that is, the power of
the king, as "father of the country," to act as the guardian for
those under legal disabilities to act for themselves.
See Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972)
(describing king's role as "'the general guardian of all
infants, idiots, and lunatics'" (quoting 3 William Blackstone,
Commentaries *47)); see also George B. Curtis, The Checkered
Career of Parens Patriae: The State as Parent or Tyrant?, 25
DePaul L. Rev. 895, 898 (1976) ("[p]arens patriae was
[originally] limited to a parental concern for dependent
classes"). While American courts adopted this common-law
concept, they did so -- consistent with the notion of
legislative supremacy -- in the form of a legislative
prerogative that was "to be exercised [by States] in the
interests of humanity, and for the prevention of injury to those
who cannot protect themselves." Snapp, 458 U.S. at 600 (quoting
Mormon Church v. United States, 136 U.S. 1, 57 (1890)). The
Supreme Court expanded the doctrine by determining that an
individual State could sue under parens patriae on behalf of all
of its citizens. See Standard Oil Co., 405 U.S. at 257-58
(citing Louisiana v. Texas, 176 U.S. 1 (1900), as signaling the
beginning of this trend).

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 -- of its residents in general. Second, a State has a
quasi-sovereign interest in not being discriminatorily
denied its rightful status within the federal system.

458 U.S. at 607. Mexico stakes its claim in our case on this

first type of quasi-sovereign interest, i.e., its interest in

the general health and well-being of workers of Mexican descent

employed by defendants. We do not reach the issue of whether

there is a quasi-sovereign interest here, but simply assume that

Mexico has interests apart from those of the individual

plaintiffs and is more than a nominal party.

The question here presented is whether a foreign nation

which asserts only quasi-sovereign interests and not its own

proprietary or sovereign interests should be afforded standing

as parens patriae. We consider this to be a question of

prudential standing, and not an Article III question. See,

e.g., Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464, 471 (1982).

Our answer is that parens patriae standing should not be

recognized in a foreign nation unless there is a clear

indication of intent to grant such standing expressed by the

Supreme Court or by the two coordinate branches of government.

See, e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U.S.

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205, 209 (1972) (finding statute clearly granted standing to

private plaintiffs asserting housing discrimination claim).

Supreme Court Doctrine

The Supreme Court has never recognized parens patriae

standing in a foreign nation where only quasi-sovereign

interests are at stake. The justifications offered to support

parens patriae standing in the individual States of the Union

are not applicable here. Further, several doctrines of judicial

restraint counsel against recognition of such standing.

Standing of foreign nations to bring suit in the federal

courts has been recognized in cases in which the foreign nation

has suffered a direct injury. "There is no question but that

foreign States may sue private parties in the federal courts."

Principality of Monaco v. Mississippi, 292 U.S. 313, 323 n.2

(1934). That standing has been conditioned on the requirement

that the foreign nation satisfy the usual standing requirements

imposed on individuals or domestic corporations. The Supreme

Court "has long recognized the rule that a foreign nation is

generally entitled to prosecute any civil claim in the courts of

the United States upon the same basis as a domestic corporation

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or individual might do." Pfizer, Inc. v. Government of India,

434 U.S. 308, 318-19 (1978). For example, foreign nations may

bring treble damages antitrust claims under the Clayton Act to

address their direct injuries. Id. at 319.5

There is no argument made here that Mexico could meet normal

standing requirements applied to individuals or domestic

corporations. Indeed, there is some danger that Mexico

"advances abstract questions of wide public significance

essentially amounting to generalized grievances more

5 The antitrust field has its own rules. Even a State
of the Union may not bring such actions in a parens patriae
capacity claiming general injury to its economy because it has
not, in that capacity, suffered an injury to its business or
property within the meaning of § 4 of the Clayton Act, 15 U.S.C.
§ 15. See Kansas v. Utilicorp United, Inc., 497 U.S. 199, 205-
06 (1990) (State not a proper plaintiff as parens patriae for
its citizens who paid inflated prices for natural gas when
lawsuit already included as plaintiffs the public utilities that
were the direct purchasers of the gas); Illinois Brick Co. v.
Illinois, 431 U.S. 720, 726-29 (1977) (no injury to Illinois as
indirect purchaser of of concrete blocks under § 4 of the
Clayton Act). Indeed, the Court has noted that even the
creation of the new procedural device of parens patriae actions
by States on behalf of their citizens to enforce existing rights
of recovery under § 4 of the Clayton Act, see 15 U.S.C. §
15c(a)(1), "'creates no new substantive liability' . . . [but
was] intended only as 'an alternative means . . . for the
vindication of existing substantive claims,'" Illinois Brick,
431 U.S. at 733-34 n.14 (quoting H.R. Rep. No. 94-499 (1975),
1976 U.S.C.C.A.N. 2572, 2578).

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appropriately addressed to the representative branches."

Benjamin v. Aroostock Med. Ctr., Inc., 57 F.3d 101, 104 (1st

Cir. 1995).

Mexico’s argument is based on the Supreme Court's

recognition of standing in the States of the Union under the

parens patriae doctrine. By analogy, Mexico says, it should be

treated in like manner. Such an analogy is not implausible;

indeed, in granting parens patriae standing to the States, the

Supreme Court has analogized the States to foreign nations. See

Missouri v. Illinois, 180 U.S. 208, 241 (1901). But the analogy

is incomplete, and so the elegant symmetry of Mexico’s argument

fails.

The primary justification for recognizing parens patriae

standing in the States, repeated throughout a century’s Supreme

Court caselaw, derives from important principles underlying our

federal system. First, the States have surrendered certain

aspects of their sovereignty to the federal government and, in

return, are given recourse to solve their problems with other

States. In Missouri v. Illinois, supra, the Court recognized

parens patriae standing in the State of Missouri to sue the

State of Illinois for sending sewage into the Mississippi River

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that poisoned its drinking water, endangered the health of its

residents, and impaired the commercial value of its towns and

cities. See Missouri, 180 U.S. at 241. The Court noted:

If Missouri were an independent and sovereign State all
must admit that she could seek a remedy by negotiation,
and, that failing, by force. Diplomatic powers and the
right to make war having been surrendered to the general
government, it was to be expected that upon the latter
would be devolved the duty of providing a remedy . . . .

Id. at 241; see generally Ann Woolhandler & Michael G. Collins,

State Standing, 81 Va. L . Rev. 387, 446-47 (1995) (around the

turn of twentieth century, the Court "began allowing states to

vindicate in federal court their general interest in protecting

their citizens" through interstate pollution actions to enjoin

public nuisances). Second, States require a sufficiently

independent forum to resolve their disputes with one another.

Accordingly, under Article III of the Constitution, the Supreme

Court has original and exclusive jurisdiction over actions

between two or more States. See 28 U.S.C. § 1251(a); see

also Georgia v. Pennsylvania R.R. Co., 324 U.S. 439, 450 (1945)

("The original jurisdiction of this Court is one of the mighty

instruments which the framers of the Constitution provided so

that adequate machinery might be available for the peaceful

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settlement of disputes between States and between a State and

citizens of another State."); see generally Erwin Chemerinsky,

Federal Jurisdiction § 10.3.1, at 580 (2d ed. 1994) ("Without a

tribunal to resolve their differences, states might resort to

armed conflicts with one another or other forms of coercive

behavior.").6 Indeed, the Court's expansion of parens patriae

doctrine beyond its traditional common law parameters took place

in cases involving the Court's exercise of its original

jurisdiction to decide controversies between States or between

a State and a citizen of another State -- an area in which the

Court acted as an arbiter between quasi-sovereign interests.

See Curtis, The Checkered Career of Parens Patriae, 25 DePaul L.

6 Of course, for the Court to exercise original
jurisdiction, such actions must meet the Article III standing
requirements and be "susceptible of judicial solution."
Louisiana v. Texas, 176 U.S. 1, 18 (1900) (accepting concept of
parens patriae standing but finding elements of that standing
not presented on the facts). Additionally, the Court can
exercise its discretion to refuse to hear disputes between
States "with an eye to promoting the most effective functioning
of this Court within the overall federal system." See Texas v.
New Mexico, 462 U.S. 554, 570 (1983).

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Rev. at 908. For obvious reasons, neither of these two

federalism justifications applies here.7

Mexico stresses that it has sued private parties, not a

State, as defendants, and turns for support to a subcategory of

cases in which the Supreme Court has recognized parens patriae

standing in States to sue private companies, not other States.

That aspect of the doctrine originated in Tennessee Copper Co.,

supra. There Georgia was permitted to sue for injunctive

relief against defendant copper companies that allegedly

discharged noxious gasses over Georgia. Again, the Court rested

its extension of the doctrine on federalism grounds:

When the states by their union made the forcible abatement
of outside nuisances impossible to each, they did not
thereby agree to submit to whatever might be done. They
did not renounce the possibility of making reasonable
demands on the ground of their still remaining quasi-
sovereign interests; and the alternative to force is a suit
in this court.

7 Furthermore, federalism concerns can also limit a
State's parens patriae standing when the suit seeks to enforce
its citizens' rights "in respect of their relations with the
federal government," where it is the United States, and not the
State, that represents them as parens patriae. Massachusetts v.
Mellon, 262 U.S. 447, 485-86 (1923) (a State may not interpose
itself to protect its citizens from the operation of allegedly
unconstitutional federal statutes); see also Woolhandler &
Collins, State Standing, 81 Va. L. Rev. at 491.

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206 U.S. at 237.8 While Mexico is correct to concede that it

would face additional problems if this suit had been brought

against a State, this does not alter the fact that the

federalism justifications for permitting States to bring suit

parens patriae against private entities are simply absent here.

Nonetheless, Mexico says that under Snapp, a more recent

case, its standing must be recognized. Snapp involved Puerto

Rico's participation in the Wagner-Peyser Act, 29 U.S.C. § 49 et

seq., which had mandated the establishment of a nationwide

employment system and encouraged the States to participate in

that system if authorized by the Secretary of Labor. See Snapp,

458 U.S. at 594-95. Puerto Rico was included in the Act’s

definition of a State. See id. at 594 n.1. If unemployed

persons capable of performing the labor sought could not be

found in this country, then temporary foreign workers could be

brought in. See id. at 595. Thus, the Act gave a preference to

8 Federalism concerns also underlay the subsequent extension
of parens patriae standing to actions involving direct economic harm.
See Pennsylvania R.R. Co., 324 U.S. at 450-51 (stating that actions of
railroads in conspiring to fix freight rates in a manner that
discriminates against Georgia shippers "relegates [Georgia] to an
inferior economic position among her sister States . . . . These are
matters of grave public concern in which Georgia has an interest apart
from that of particular individuals who may be affected.").

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United States workers (including citizens of Puerto Rico) for

newly available jobs in this country and prevented such workers

from being disadvantaged by foreign workers. See id. at 596.

Puerto Rico certified more than a thousand of its workers to

Virginia apple growers looking for temporary labor during the

1978 harvest season. When Virginia growers refused to hire

Puerto Rican workers, including those who had already arrived in

Virginia, Puerto Rico sued for declaratory and injunctive

relief. See id. at 596-97.

The Court recognized parens patriae standing in Puerto Rico.

Id. at 608. Although the Court recognized Puerto Rico’s

interest in avoiding discrimination against its citizens as a

quasi-sovereign interest, it did so in the context of describing

Puerto Rico’s role in the federal system. See id. at 607-08

("Distinct from but related to the general well-being of its

residents, the State has an interest in securing observance of

the terms under which it participates in the federal system.").9

9 Indeed, Puerto Rico had alleged, inter alia, that the
discrimination by Virginia growers deprived it of "its right to
effectively participate in the benefits of the Federal
Employment Service System of which it is a part." Id. at 598
(internal quotation marks omitted).

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The Snapp Court granted standing to Puerto Rico qua State under

the Wagner-Peyser Act on two alternative grounds: 1) a State's

interest in protecting citizens from discrimination, id. at 609;

and 2) a State's interest in equal participation in a federal

employment service scheme, id. at 609-10. Here, of course,

Mexico relies only on the former ground. While Snapp's

discussion of federalism principles -- e.g., its discussion of

a State's right to the observance of the terms of a compact by

which it participates in the federal system, id. at 607-08 --

seems to refer distinctly to the second of the two grounds of

standing, and thus the one not relied on here by Mexico, the two

grounds dovetail in that residents were being excluded from

participation in a federal program by virtue of discrimination.

We do not read Snapp as establishing parens patriae standing

in a State in the absence of federalism concerns where the

quasi-sovereign interest at stake is the prevention of

discrimination against that State's citizens. Indeed, it

remains questionable whether Snapp would permit a State to seek

parens patriae standing on the basis Mexico asserts here because

States are not assigned a special role in the enforcement of 42

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U.S.C. § 1981, unlike the special role they are assigned under

the Wagner-Peyser Act, 29 U.S.C. § 49 et seq., which was at

issue in Snapp. But even if States could bring suits such as

this one, Mexico’s claim would still fail. By definition, a

foreign nation has no cognizable interests in our system of

federalism. And such interests are a critical element of parens

patriae standing.

Nor is Mexico’s position supported by adherence to any

principle of customary international law. Such a principle

would provide an arguable basis on which to grant standing.

Mexico, however, has admitted that it knows of no such principle

recognizing parens patriae standing in foreign nations and we

likewise have found none.10 Instead, Mexico points hopefully to

the principle of comity. The principle is well recognized but

beside the point. Comity permits foreign nations to sue in our

courts if they meet the normal standing requirements imposed on

individuals. See Banco Nacional de Cuba v. Sabbatino, 376 U.S.

10 Parens patriae is not mentioned as an established
principle of international law in either the Restatement (Third)
of Foreign Relations Law of the United States (1987) or any
major treatise in the field.

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398, 408-09 (1964). But parens patriae standing goes beyond

normal standing requirements.

Moreover, the granting of parens patriae status to foreign

nations would raise concerns beyond the lack of support for such

status in precedent or prior reasoning. One particularly

compelling concern was thoughtfully articulated by the district

court. The conduct of the foreign affairs of this country is

committed to the Executive and to the Congress. This division

of power should give courts pause before entering this arena,

absent guidance from those other two branches. Care should be

taken not to impinge on the Executive’s treaty-making

prerogatives or to assume that courts have the institutional

competence to perform functions assigned elsewhere by the

Constitution. See United States v. Kin-Hong, 110 F.3d 103, 110-

11 (1st Cir.), stay denied, 520 U.S. 1206 (1997). The Executive

often requires, before extending rights to foreign nations, that

there be agreements providing for reciprocal protection of

American interests. The ability of the other branches to secure

such reciprocity could be undermined if the Judiciary did not

adhere to the principal of non-interference. See United States

v. Boots, 80 F.3d 580, 587-88 (1st Cir.) (reciting dangers of

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this country's penal enforcement of other countries' customs and

tax laws without reciprocal enforcement of American laws), cert.

denied, 519 U.S. 905 (1996).

Mexico says that these concerns are alleviated by the act

of state doctrine and the political question doctrine. It is

difficult to see what the act of state doctrine, which has

traditionally precluded review by United States courts of

official acts by foreign states, see Oetjen v. Central Leather

Co., 246 U.S. 297, 303-04 (1918), has to do with the situation

here.11 And while there is some parallel to the political

question doctrine, it works against Mexico. Again, the very

question of whether a foreign nation should be given rights to

sue beyond those rights enjoyed by United States citizens raises

concerns about the allocation of responsibility among our three

branches of government.

11 The Court's more recent justification for the doctrine as an
expression of the domestic separation of powers further undermines
Mexico's argument here. See W.S. Kirkpatrick & Co., Inc. v.
Environmental Tectonics Corp., Intl., 493 U.S. 400, 404 (1990) (act of
state doctrine reflects "'the strong sense of the Judicial Branch that
its engagement in the task of passing on the validity of foreign acts
of state may hinder' the conduct of foreign affairs" (quoting
Sabbatino, 376 U.S. at 423)).

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 In addition, other reasons for caution stem from the rules

and procedures within the federal judiciary. As the Eighth

Circuit noted in denying parens patriae status to foreign

governments in a Sherman Act case, class actions are often the

preferable vehicle to pursue claims on behalf of a country's

citizens. See Pfizer, Inc. v. Lord, 522 F.2d 612, 617-18 (8th

Cir. 1975) ("th[e] strong preference for class actions over

Parens patriae has been repeatedly expressed"), cert. denied,

424 U.S. 950 (1976). Furthermore, the potential exists for

conflicts between the individual litigants and the parens

patriae nation plaintiff over issues of settlement, appropriate

relief, and the like. See Lisa Moscati Hawkes, Note, Parens

Patriae and the Union Carbide Case: The Disaster at Bhopal

Continues, 21 Cornell Int’l L.J. 181, 181-83 (1988) (discussing

case brought by government of India under the parens patriae

doctrine in which India blocked settlement offer that individual

plaintiffs had wanted to accept). But see Comment, Parens

Patriae Representation in Transnational Crises: The Bhopal

Tragedy, 17 Cal. W. Int’l L.J. 175, 184 (1987) (suggesting that

unusual circumstances surrounding Bhopal case made it ideal for

application of parens patriae doctrine). Indeed, relief

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obtained by the parens patriae plaintiff may bar private

litigants from later bringing suit. See City of Tacoma v.

Taxpayers of Tacoma, 357 U.S. 320, 334 (1958). Commentators

have also suggested that, even as to individual States, parens

patriae standing should be limited because "expansive state

standing has a serious potential to undermine rather than

complement individual standing in constitutional cases."

Woolhandler & Collins, State Standing, 81 Va. L . Rev. at 396.

Mexico says that there is no potential for conflict because

it seeks only declaratory and injunctive relief whereas the

individual plaintiffs seek primarily monetary compensation. In

fact, the individual plaintiffs also sought injunctive relief,

particularly on behalf of the putative class. See Ramirez, 194

F.R.D. at 352 (plaintiffs' seek to enjoin DeCoster "from maintaining a

policy of discrimination against Mexicans regarding the terms and

conditions of their employment").12

12 While there is the problem of overlap and potential
conflict whenever parens patriae standing is allowed, cf.
Pfizer, 522 F.2d at 618 (explaining why parens patriae actions
lack the various safeguards contained in the class action
rules), we do not suggest, however, that the mere presence of
potential conflict might alone prove a sufficient basis on which
to deny such standing.

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 To summarize, we have looked to Supreme Court precedent and

doctrine to see whether there is warrant to extend parens

patriae standing to a foreign nation in this action. There is

no direct precedent allowing for such status and the federalism

concerns that animate recognition of parens patriae status in

the States are simply absent. Moreover, there are reasons for

the courts not to recognize such standing, reasons stemming from

the assignment of the foreign relations powers to the other

branches. There are other reasons having to do with prudential

considerations within the courts themselves, concerns about

avoiding conflict with the class action rules and about

undermining the role of the individual plaintiffs. All of these

reasons may be overcome should the Supreme Court or other two

branches decide these policy concerns differently. But the

Supreme Court has not yet done so, and we thus turn to the other

two branches.

The Coordinate Branches

What is left is the question of whether the Executive or the

Congress has given any guidance on the issue before us.

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 No party contends that Congress took a position on the topic

in the definition of the word "persons" within the meaning of

the Civil Rights Act, 42 U.S.C. § 1981. Nor does Mexico point

to a treaty or executive agreement affording it special, parens

patriae standing. Further, Mexico points to no statute

recognizing such standing. By contrast, Congress has expressly

authorized the United States, by its Attorney General, to

enforce federal statutes and some Fourteenth Amendment rights.

See, e.g., Civil Rights Act of 1964, 42 U.S.C. § 2000a-5 (1994)

(authorizing suits for injunctive relief to enforce an

individual's right to equal enjoyment of public accommodations);

id. § 2000e-5 (authorizing suits for injunctive relief from

discriminatory employment practices); cf. Larry W. Yackle, A

Worthy Champion for Fourteenth Amendment Rights: The United

States in Parens Patriae, 92 Nw. U. L. Rev. 111, 114 (1997)

(advocating parens patriae suits by the United States to enforce

the Fourteenth Amendment).

To the contrary, the defendants say, Congress and the

President have indicated that disputes such as these are not to

be heard by the courts but are instead to be governed by the

North American Free Trade Agreement ("NAFTA") and, more

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specifically, by the so-called labor "side agreement." See

North American Agreement on Labor Cooperation, Sept. 8, 9, 12,

and 14, 1993, 32 I.L.M. 1499 (1993) ("NAALC"). Since NAFTA and

NAALC govern this conflict, defendants say that these agreements

provide Mexico’s exclusive remedy and preclude resort to the

federal courts. The NAALC establishes four levels for settling

labor law disputes, including top-level consultation between

national labor law ministers of the respective member States.

See id. art. 22, 32 I.L.M. at 1508.13 Such consultation extends

to any labor law matter within the scope of the Agreement, see

id., including the elimination of employment discrimination, see

13 Following ministerial consultations, a single Party may
initiate the establishment of an Evaluation Committee of Experts, which
in turn performs an independent, non-adversarial analysis and then
provides recommendations covering all three Parties' labor law
enforcement in the particular area in issue. See id. arts. 23-26, 32
I.L.M. at 1508-09.

In addition to providing for these ministerial consultations, the
NAALC also allows private parties to file submissions for review by a
National Administrative Office (NAO) established within the respective
federal department of labor of each member State. See id. arts. 15-16,
21, 32 I.L.M. at 1507-08. The NAO investigates the submission (which
investigation, in the United States, includes holding a public hearing)
and issues a report. See generally Clyde Summers, NAFTA's Labor Side
Agreement and International Labor Standards, 3 J. Small & Emerging Bus.
L. 173 (1999).

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id. Annex 1, ¶ 7, 32 I.L.M. at 1515-16.14 If the parties are

unable to resolve the matter by cooperation, NAALC provides for

dispute resolution through binding arbitration. Id. arts. 27-

41, 32 I.L.M. at 1509-13. Mexico rejoins that while NAFTA

covers disputes between governments, such as a claim by Mexico

that the United States is not enforcing its own labor laws, this

action involves discrimination claims against a private party.

While Mexico's argument is not without force, resolution of this

precise issue is not necessary. The important point is that

there is no suggestion in NAFTA or NAALC that the other two

branches of the United States government intended to grant

Mexico special standing as parens patriae to pursue these

claims.15

14 Similarly, the scope of NAALC review extends to another
Party's "labor law, its administration, or labor market conditions in
its territory." Id. art. 21, 32 I.L.M. at 1507.
15 To the extent that Mexico believes that the United
States has failed to enforce its labor laws against defendants,
it appears that Mexico may use the mechanisms set forth in the
NAALC. Although NAALC's arbitration mechanism would not seem to
encompass the instant allegations of racial discrimination
against defendants, see id. art. 29, 32 I.L.M. at 1509-10
(limiting the scope of arbitration to "the alleged persistent
pattern of failure by the Party complained against to
effectively enforce its occupational safety and health, child
labor or minimum wage technical labor standards"), Mexico could
still pursue these claims through the process of ministerial

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 Finally, the district court commendably invited comment from

the U.S. Department of State. The State Department, however,

declined to comment, and thus, again, there is no indication of

support by the Executive Branch for Mexico’s position.

Mexico’s final arguments, which are based in policy, are not

insignificant. More than one thousand workers of Mexican

descent worked at DeCoster between 1992 and 1996. Many of these

transitory workers are poor, are isolated both geographically

and culturally, are economically dependent on their employer,

and are in a poor position to obtain legal services or to work

with counsel. Amicus Farmworker Justice Fund, Inc. also points

to decreased efforts by federal agencies charged with enforcing

wage and hour laws in agriculture.16 Mexico, however, is not

left powerless to address these concerns. As the district court

suggested, Mexico could financially support the plaintiffs in

their efforts or seek to participate as amicus. Moreover, the

alleged violations may be entirely appropriate for Mexico to

raise with the United States though diplomatic channels. But

consultation described above.
16 We acknowledge with appreciation the amicus briefs submitted
by both the Farmworker Justice Fund, Inc. and the New England Legal
Foundation.

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the courts, absent the type of clear direction discussed

earlier, are not the appropriate forum for the litigation of

Mexico's quasi-sovereign interests.

The judgment of dismissal as to Mexico as a party plaintiff

is affirmed. No costs to either party.

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