No. 80-1305
Argued: April 20, 1982Decided: July 1, 1982
Held:
Puerto Rico has parens patriae standing to maintain this suit. Pp. 600-610. [458 U.S. 592, 593]
- (a) In order to maintain a parens patriae action, a State must articulate an interest apart from the interests of particular private parties, that is, the State must be more than a nominal party. The State must express a “quasi-sovereign” interest, such as its interest in the health and well-being – both physical and economic – of its residents in general. Although more must be alleged than injury to an identifiable group of individual residents, the indirect effects of the injury must be considered as well in determining whether the State has alleged injury to a sufficiently substantial segment of its population. A State also has a quasi-sovereign interest in not being discriminatorily denied its rightful status within the federal system – that is, in ensuring that the State and its general population are not excluded from the benefits that are to flow from participation in the federal system. Pp. 600-608.
- (b) Under the above principles, Puerto Rico’s allegations that petitioners discriminated against Puerto Ricans in favor of foreign laborers falls within the Commonwealth’s quasi-sovereign interest in the general well-being of its citizens. A State’s interest in the well-being of its residents, which extends beyond mere physical interests to economic and commercial interests, also includes the State’s substantial interest in securing its residents from the harmful effects of discrimination. This interest is peculiarly strong in the case of Puerto Rico simply because of the fact that invidious discrimination frequently occurs along ethnic lines. Alternatively, Puerto Rico has parens patriae standing to pursue its residents’ interests in the Commonwealth’s full and equal participation in the federal employment service scheme established by the laws involved here. Pp. 608-610.
632 F.2d 365, affirmed.
WHITE, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the decision of the case. BRENNAN, J., filed a concurring opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 610.
Thomas J. Bacas argued the cause for petitioners. With him on the briefs was S. Steven Karalekas.
Paul A. Lenzini argued the cause and filed a brief for respondent. *
[ Footnote * ] Briefs of amici curiae urging affirmance were filed by Francis X. Bellotti, Attorney General, and Anthony P. Sager, Assistant Attorney General, for the Commonwealth of Massachusetts; by [458 U.S. 592, 594] Robert Abrams, Attorney General of New York, Shirley Adelson Siegel, Solicitor General, and Peter Bienstock, Deborah Bachrach, and Daniel Berger, Assistant Attorneys General, Leroy Zimmerman, Attorney General of Pennsylvania, Frank P. Tuplin, Deputy Attorney General, and Paul E. Waters, Executive Deputy Attorney General, for the State of New York et al.; and by A. Douglas Melamed for the Migrant Legal Action Program, Inc., et al. [458 U.S. 592, 594]
JUSTICE WHITE delivered the opinion of the Court.
In this case, the Commonwealth of Puerto Rico seeks to bring suit in its capacity as parens patriae against petitioners for their alleged violations of federal law. Puerto Rico contends that those violations discriminated against Puerto Ricans and injured the Puerto Rican economy. The question presented here is whether Puerto Rico has standing to maintain this suit.
I
A
The factual background of this case involves the interaction of two federal statutes, the Wagner-Peyser Act, 48 Stat. 113, 29 U.S.C. 49 et seq., and the Immigration and Nationality Act of 1952, 66 Stat. 163, as amended, 8 U.S.C. 1101 et seq. (1976 ed. and Supp. IV). The Wagner-Peyser Act was passed in 1933 in order to deal with the massive problem of unemployment resulting from the Depression. The Act establishes the United States Employment Service within the Department of Labor “[i]n order to promote the establishment and maintenance of a national system of public employment offices.” 29 U.S.C. 49. State agencies, which have been approved by the Secretary of Labor, are authorized to participate in the nationwide employment service. 1 49g. The Secretary is authorized to make “such rules and regulations as may be necessary” to accomplish the ends of the Act. 49k. Federal regulations issued pursuant to that authority [458 U.S. 592, 595] have established an interstate clearance system to provide employers a means of recruiting nonlocal workers, when the supply of local workers is inadequate. 20 CFR 602.2(c) (1981). If local workers are not available, a “clearance order” is sent through the Employment and Training Administration of the Department of Labor to other state agencies in order to give them an opportunity to meet the request.
Some of petitioners’ obligations under the employment system established by the Wagner-Peyser Act stem from the Immigration and Nationality Act of 1952, insofar as it regulates the admission of nonimmigrant aliens into the United States. The latter Act authorizes the admission of temporary foreign workers into the United States only “if unemployed persons capable of performing such service or labor cannot be found in this country.” 8 U.S.C. 1101(a)(15) (H)(ii). The Attorney General is charged with determining whether entry of foreign workers would meet this standard, “upon petition of the importing employer.” 8 U.S.C. 1184(c). He is to make this determination “after consultation with appropriate agencies of the Government.” Ibid. The Attorney General has delegated this responsibility to the Commissioner of Immigration and Naturalization, 8 CFR 2.1 (1982), who, in turn, relies on the Secretary of Labor for the initial determinations. 8 CFR 214.2(h)(3) (1982). 2 To meet this responsibility, the Secretary of Labor relies upon the employment referral system established under the Wagner-Peyser Act.
Any employer who wants to employ temporary foreign agricultural laborers must first seek domestic laborers for the openings through use of the interstate clearance system. [458 U.S. 592, 596] The employer who anticipates a need for foreign laborers must file an application with the local public employment office, including a copy of the job offer. 20 CFR 655.201 (a)(1), (b)(1) (1981). The application must be filed in sufficient time to allow the agency to recruit through the interstate clearance system for 60 days prior to the estimated date of the start of employment. 655.201(c). The regulations further provide that the employer must include assurances that the job opportunity is “open to all qualified U.S. workers without regard to race, color, national origin, sex, or religion, and is open to U.S. workers with handicaps who are qualified to perform the work,” and that the employer will continue to seek United States workers until the foreign workers have departed for the employer’s place of employment. 655.203(c), (d). 3 Finally, the regulations require that “each employer’s job offer to U.S. workers must offer U.S. workers at least the same benefits which the employer is offering, intends to offer, or will afford, to temporary foreign workers.” 655.202(a). Similarly, the employer may not impose obligations or restrictions on domestic workers that are not, or will not be, imposed on foreign workers. Ibid.
The obvious point of this somewhat complicated statutory and regulatory framework is to provide two assurances to United States workers, including the citizens of Puerto Rico. First, these workers are given a preference over foreign workers for jobs that become available within this country. Second, to the extent that foreign workers are brought in, the working conditions of domestic employees are not to be adversely affected, nor are United States workers to be discriminated against in favor of foreign workers. [458 U.S. 592, 597]
B
The particular facts of this case involve the 1978 apple harvest on the east coast. That was apparently a good year for apples, resulting in a substantial need for temporary farm laborers to pick the crop. To meet this need the apple growers filed clearance orders with their state employment agencies. Through the system described above, a total of 2,318 job openings were transmitted to Puerto Rico on August 2, 1978. As of August 14, which marked the end of the 60-day “availability” period, supra, at 596, the Commonwealth Department of Labor had recruited 1,094 Puerto Rican workers. Puerto Rican workers for the remaining openings were subsequently recruited. As stated in Puerto Rico’s complaint:
- “Of this total number of 2,318 Puerto Rican workers, only 992 actually arrived on the mainland. The remainder never left Puerto Rico because of oral advice from the United States Department of Labor requesting cancellation of remaining flights because many of the defendant growers had refused to employ Puerto Rican workers who had already arrived. Of the 992 workers who arrived at the orchards, 420 came to Virginia orchards. Of these 420 workers, fewer than 30 had employment three weeks later, the growers having refused to employ most of these workers and having dismissed most of the rest within a brief time for alleged unproductivity.” App. 17-18.
Puerto Rico filed this suit on January 11, 1979, naming as defendants numerous individuals and companies engaged in the apple industry in Virginia. 4 Of the 2,318 job requests forwarded to Puerto Rico, respondent alleged that 787 of these had come from the named Virginia growers. In three counts, the complaint alleged that the defendants had violated [458 U.S. 592, 598] the Wagner-Peyser Act, the Immigration and Nationality Act of 1952, and various federal regulations implementing those statutes, by failing to provide employment for qualified Puerto Rican migrant farm workers, by subjecting those Puerto Rican workers that were employed to working conditions more burdensome than those established for temporary foreign workers, 5 and by improperly terminating employment of Puerto Rican workers. Alleging that this discrimination against Puerto Rican farmworkers deprived “the Commonwealth of Puerto Rico of its right to effectively participate in the benefits of the Federal Employment Service System of which it is a part” and thereby caused irreparable injury to the Commonwealth’s efforts “to promote opportunities for profitable employment for Puerto Rican laborers and to reduce unemployment in the Commonwealth,” respondent sought declaratory relief with respect to the past practices of petitioners and injunctive relief requiring petitioners to conform [458 U.S. 592, 599] to the relevant federal statutes and regulations in the future.
Petitioners responded with a motion to dismiss, asserting that respondent lacked standing to bring this action. Although though the District Court held that the Commonwealth of Puerto Rico is capable of asserting parens patriae interests in general, it agreed with petitioners’ contention that no such action could be maintained under the circumstances of this case. In particular, the District Court relied upon the relatively small number of individuals directly involved – some 787 out of a total population of close to 3 million – and the slight impact upon the general economy of Puerto Rico that the loss of this number of temporary jobs could have.
A divided panel of the Court of Appeals for the Fourth Circuit reversed. 6 632 F.2d 365 (1980). The majority held that the District Court had focused too narrowly on those directly involved, ignoring those that were indirectly affected by petitioners’ alleged actions. Noting the serious dimensions of the unemployment problem in Puerto Rico and the general condition of its economy, 7 the court stated that “[d]eliberate efforts to stigmatize the labor force as inferior carry a universal sting” and the “inability of the United States government . . . to grant Puerto Ricans equal treatment with other citizens or even with foreign temporary workers must certainly have an effect which permeates the entire island of Puerto Rico.” Id., at 370. These indirect effects on the interests of “a substantial portion of its citizenry” were sufficient, in its view, to support a parens patriae action. Ibid.
We granted certiorari to determine whether Puerto Rico could maintain a parens patriae action here, despite the small number of individuals directly involved. 454 U.S. 1079 (1981). [458 U.S. 592, 600]
II
Parens patriae means literally “parent of the country.” 8 The parens patriae action has its roots in the common-law concept of the “royal prerogative.” 9 The royal prerogative included the right or responsibility to take care of persons who “are legally unable, on account of mental incapacity, whether it proceed from 1st. nonage: 2. idiocy: or 3. lunacy: to take proper care of themselves and their property.” 10 At a fairly early date, American courts recognized this common-law concept, but now in the form of a legislative prerogative: “This prerogative of parens patriae is inherent in the supreme power of every State, whether that power is lodged in a royal person or in the legislature [and] is a most beneficent function . . . often necessary to be exercised in the interests of humanity, and for the prevention of injury to those who cannot protect themselves.” Mormon Church v. United States, 136 U.S. 1, 57 (1890).
This common-law approach, however, has relatively little to do with the concept of parens patriae standing that has developed in American law. That concept does not involve the State’s stepping in to represent the interests of particular citizens who, for whatever reason, cannot represent themselves. In fact, if nothing more than this is involved – i. e., if the State is only a nominal party without a real interest of its own – then it will not have standing under the parens patriae doctrine. See Pennsylvania v. New Jersey, 426 U.S. 660 (1976); Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938); Oklahoma v. Atchison, T. & S. F. R. Co., 220 U.S. [458 U.S. 592, 601] 277 (1911). Rather, to have such standing the State must assert an injury to what has been characterized as a “quasi-sovereign” interest, which is a judicial construct that does not lend itself to a simple or exact definition. Its nature is perhaps best understood by comparing it to other kinds of interests that a State may pursue and then by examining those interests that have historically been found to fall within this category.
Two sovereign interests are easily identified: First, the exercise of sovereign power over individuals and entities within the relevant jurisdiction – this involves the power to create and enforce a legal code, both civil and criminal; second, the demand for recognition from other sovereigns – most frequently this involves the maintenance and recognition of borders. The former is regularly at issue in constitutional litigation. The latter is also a frequent subject of litigation, particularly in this Court:
- “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 settlement of disputes between States and between a State and citizens of another State. . . . The traditional methods available to a sovereign for the settlement of such disputes were diplomacy and war. Suit in this Court was provided as an alternative.” Georgia v. Pennsylvania R. Co., 324 U.S. 439, 450 (1945).
Not all that a State does, however, is based on its sovereign character. Two kinds of nonsovereign interests are to be distinguished. First, like other associations and private parties, a State is bound to have a variety of proprietary interests. A State may, for example, own land or participate in a business venture. As a proprietor, it is likely to have the same interests as other similarly situated proprietors. And like other such proprietors it may at times need to pursue [458 U.S. 592, 602] those interests in court. Second, a State may, for a variety of reasons, attempt to pursue the interests of a private party, and pursue those interests only for the sake of the real party in interest. Interests of private parties are obviously not in themselves sovereign interests, and they do not become such simply by virtue of the State’s aiding in their achievement. In such situations, the State is no more than a nominal party.
Quasi-sovereign interests stand apart from all three of the above: They are not sovereign interests, proprietary interests, or private interests pursued by the State as a nominal party. They consist of a set of interests that the State has in the well-being of its populace. Formulated so broadly, the concept risks being too vague to survive the standing requirements of Art. III: A quasi-sovereign interest must be sufficiently concrete to create an actual controversy between the State and the defendant. The vagueness of this concept can only be filled in by turning to individual cases.
That a parens patriae action could rest upon the articulation of a “quasi-sovereign” interest was first recognized by this Court in Louisiana v. Texas, 176 U.S. 1 (1900). In that case, Louisiana unsuccessfully sought to enjoin a quarantine maintained by Texas officials, which had the effect of limiting trade between Texas and the port of New Orleans. The Court labeled Louisiana’s interest in the litigation as that of parens patriae, and went on to describe that interest by distinguishing it from the sovereign and proprietary interests of the State:
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- “Inasmuch as the vindication of the freedom of interstate commerce is not committed to the State of Louisiana, and that State is not engaged in such commerce, the cause of action must be regarded not as involving any infringement of the powers of the State of Louisiana, or any special injury to her property, but as asserting that the State is entitled to seek relief in this way because the
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- matters complained of affect her citizens at large.” Id., at 19.
Although Louisiana was unsuccessful in that case in pursuing the commercial interests of its residents, a line of cases followed in which States successfully sought to represent the interests of their citizens in enjoining public nuisances. North Dakota v. Minnesota, 263 U.S. 365 (1923); Wyoming v. Colorado, 259 U.S. 419 (1922); New York v. New Jersey, 256 U.S. 296 (1921); Kansas v. Colorado, 206 U.S. 46 (1907); Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907); Kansas v. Colorado, 185 U.S. 125 (1902); Missouri v. Illinois, 180 U.S. 208 (1901).
In the earliest of these, Missouri v. Illinois, Missouri sought to enjoin the defendants from discharging sewage in such a way as to pollute the Mississippi River in Missouri. The Court relied upon an analogy to independent countries in order to delineate those interests that a State could pursue in federal court as parens patriae, apart from its sovereign and proprietary interests: 12
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- “It is true that no question of boundary is involved, nor of direct property rights belonging to the complainant State. But it must surely be conceded that, if the health and comfort of the inhabitants of a State are threatened,
- the State is the proper party to represent and defend them. 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 and that remedy, we think, is found in the constitutional provisions we are considering.” Id., at 241.
This analogy to an independent country was also articulated in Georgia v. Tennessee Copper Co., supra, at 237, a case involving air pollution in Georgia caused by the discharge of noxious gasses from the defendant’s plant in Tennessee. Justice Holmes, writing for the Court, described the State’s interest under these circumstances as follows:
- “[T]he State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power. . . .
- “. . . 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.”
Both the Missouri case and the Georgia case involved the State’s interest in the abatement of public nuisances, instances in which the injury to the public health and comfort was graphic and direct. Although there are numerous examples of such parens patriae suits, e. g., North Dakota v. Minnesota, supra (flooding); New York v. New Jersey, supra [458 U.S. 592, 605] (water pollution); Kansas v. Colorado, 185 U.S. 125 (1902) (diversion of water), parens patriae interests extend well beyond the prevention of such traditional public nuisances.
In Pennsylvania v. West Virginia, 262 U.S. 553 (1923), for example, Pennsylvania was recognized as a proper party to represent the interests of its residents in maintaining access to natural gas produced in West Virginia:
- “The private consumers in each State . . . constitute a substantial portion of the State’s population. Their health, comfort and welfare are seriously jeopardized by the threatened withdrawal of the gas from the interstate stream. This is a matter of grave public concern in which the State, as representative of the public, has an interest apart from that of the individuals affected. It is not merely a remote or ethical interest but one which is immediate and recognized by law.” Id., at 592.
The public nuisance and economic well-being lines of cases were specifically brought together in Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945), in which Georgia alleged that some 20 railroads had conspired to fix freight rates in a manner that discriminated against Georgia shippers in violation of the federal antitrust laws:
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- “If the allegations of the bill are taken as true, the economy of Georgia and the welfare of her citizens have seriously suffered as the result of this alleged conspiracy . . . . [Trade barriers] may cause a blight no less serious than the spread of noxious gas over the land or the deposit of sewage in the streams. They may affect the prosperity and welfare of a State as profoundly as any diversion of waters from the rivers. . . . Georgia as a representative of the public is complaining of a wrong which, if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her
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- 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.” Id., at 450-451.
This summary of the case law involving parens patriae actions leads to the following conclusions. In order to maintain such an 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 – 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.
The Court has not attempted to draw any definitive limits on the proportion of the population of the State that must be adversely affected by the challenged behavior. Although more must be alleged than injury to an identifiable group of individual residents, the indirect effects of the injury must be considered as well in determining whether the State has alleged injury to a sufficiently substantial segment of its population. One helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue as parens patriae is whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers. 14
Distinct from but related to the general well-being of its residents, the State has an interest in securing observance of [458 U.S. 592, 608] the terms under which it participates in the federal system. In the context of parens patriae actions, this means ensuring that the State and its residents are not excluded from the benefits that are to flow from participation in the federal system. Thus, the State need not wait for the Federal Government to vindicate the State’s interest in the removal of barriers to the participation by its residents in the free flow of interstate commerce. See Pennsylvania v. West Virginia, 262 U.S. 553 (1923). Similarly, federal statutes creating benefits or alleviating hardships create interests that a State will obviously wish to have accrue to its residents. See Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945) (federal antitrust laws); Maryland v. Louisiana; 451 U.S. 725 (1981) (Natural Gas Act). Once again, we caution that the State must be more than a nominal party. But a State does have an interest, independent of the benefits that might accrue to any particular individual, in assuring that the benefits of the federal system are not denied to its general population.
We turn now to the allegations of the complaint to determine whether they satisfy either or both of these criteria. 15
III
The complaint presents two fundamental contentions. First, it alleges that the petitioners discriminated against Puerto Ricans in favor of foreign laborers. Second, it alleges that Puerto Ricans were denied the benefits of access to domestic work opportunities that the Wagner-Peyser Act and the Immigration and Nationality Act of 1952 were designed to secure for United States workers. We find each of these allegations to fall within the Commonwealth’s quasi-sovereign interests and, therefore, each will support a parens patriae action. [458 U.S. 592, 609]
Petitioners contend that at most there were only 787 job opportunities at stake in Virginia and that this number of temporary jobs could not have a substantial direct or indirect effect on the Puerto Rican economy. We believe that this is too narrow a view of the interests at stake here. Just as we have long recognized that a State’s interests in the health and well-being of its residents extend beyond mere physical interests to economic and commercial interests, we recognize a similar state interest in securing residents from the harmful effects of discrimination. This Court has had too much experience with the political, social, and moral damage of discrimination not to recognize that a State has a substantial interest in assuring its residents that it will act to protect them from these evils. This interest is peculiarly strong in the case of Puerto Rico simply because of the unfortunate fact that invidious discrimination frequently occurs along ethnic lines. Puerto Rico’s situation differs somewhat from the States in this regard – not in theory but in fact – simply because this country has for the most part been spared the evil of invidious discrimination based on state lines. Were this to come to pass, however, we have no doubt that a State could seek, in the federal courts, to protect its residents from such discrimination to the extent that it violates federal law. Puerto Rico claims that it faces this problem now. Regardless of the possibly limited effect of the alleged financial loss at issue here, we agree with the Court of Appeals that “[d]eliberate efforts to stigmatize the labor force as inferior carry a universal sting.” 632 F.2d, at 370.
Alternatively, we find that Puerto Rico does have parens patriae standing to pursue the interests of its residents in the Commonwealth’s full and equal participation in the federal employment service scheme established pursuant to the Wagner-Peyser Act and the Immigration and Nationality Act of 1952. Unemployment among Puerto Rican residents is surely a legitimate object of the Commonwealth’s concern. Just as it may address that problem through its own legislation, it may also seek to assure its residents that they will [458 U.S. 592, 610] have the full benefit of federal laws designed to address this problem. The Commonwealth’s position in this respect is not distinguishable from that of Georgia when it sought the protection of the federal antitrust laws in order to eliminate freight rates that discriminated against Georgia shippers, Georgia v. Pennsylvania R. Co., supra, or from that of Maryland when it sought to secure the benefits of the Natural Gas Act for its residents, Maryland v. Louisiana, supra. Indeed, the fact that the Commonwealth participates directly in the operation of the federal employment scheme makes even more compelling its parens patriae interest in assuring that the scheme operates to the full benefit of its residents.
