ADAMS FRUIT CO. v. BARRETT

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Argument of Bonita L. Kneeland

Chief Justice Rehnquist: We'll hear argument next in No. 88-2035, Adams Fruit Company v. Ramsford Barrett.

Ms. Kneeland.

Mr. Kneeland: Mr. Chief Justice, and may it please the Court:

This case involves an auto accident in which a group of migrant workers who were being transported to the fields, at which time the van in which they were being transported tipped over because a tire blew and they were injured.

The workers were compensated through workers' compensation benefits.

However, after that point, they also brought suit against the employer based on allegations that the employer had violated safety provisions in the Migrant Seasonal Agricultural Worker Protection Act, which is sometimes known as MSAWPA or AWPA.

Since the court below used the term AWPA, that is the one I will use.

The AWPA violations, as to the infractions that allegedly caused body... bodily injury were never proved because the case was resolved in the Middle District of Florida by way of a... a partial summary judgment.

The Middle District of Florida, looking at the incorporation or the addition of the workers' compensation remedy into the act and the Department of Labor's regulation making that the exclusive remedy in cases of bodily injury, the... the Middle District gave a summary judgment to Adams Fruit on those bodily injury claims, as well as the claims for statutory fines and injunctive relief in that area.

What the Middle District did then is swing the pendulum in one direction completely.

In the Eleventh Circuit, the Eleventh Circuit swung the pendulum back completely in another direction and reinstated everything to the migrant workers, not simply entitlement to sue under the statute to enforce the safety provisions by way of penalties or injunctive relief, but also to make workers' compensation only the first step in a two-step process where they could stack a liability claim for bodily injury damages under the act above and beyond the workers' compensation relief.

And we are here today to argue the narrow issue that perhaps both courts swung too far in either direction, and this Court should make the pendulum right again.

The narrow issue, as I said, is that when workers' compensation is provided, as set up by the act itself, whether AWPA intended to operate workers' compensation as it normally would operate, as a no-fault recovery, in return for being the exclusive remedy for bodily injury claims... BI claims or death.

Our position in this Court is that we are not advocating to this Court that the migrant workers may not sue to get penalties or injunctive relief under the statute.

We are simply saying that the bodily injury claims were recovered by way of workers' compensation and that is not part of a two-step remedy that can be stacked.

Although the Eleventh Circuit framers--

Unknown Speaker: Miss Kneeland--

Mr. Kneeland: --Yes?

Unknown Speaker: --are you saying there should be some sort of a set-off for recovery in the other procedure or just that one completely precludes the other insofar as damages?

Mr. Kneeland: What we are saying, as far as bodily injury claims alone... these are claims for medicals, and lost wages and that... that which is in the field of bodily injury or actual damages... that is taken care of by the alternate remedy which is included in the statute of workers' compensation.

Unknown Speaker: What... you... you mean... the workmen... that Florida workmen's compensation is included in... in AWPA?

Mr. Kneeland: Yes, it is.

State workers' compensation is included in AWPA.

Unknown Speaker: What do you mean?

It's... it's a--

Mr. Kneeland: It just says state, any state.

Actually, specifically it's Section 1841 which deals with the cases of bodily injury or death for workers in transit, as happened in this case.

In Section 1841, the insurance plans--

Unknown Speaker: --Where do we find that?

Whereabouts?

Would you give us--

Mr. Kneeland: --1841(c), in--

Unknown Speaker: --Is there a brief where we--

Mr. Kneeland: --Yes.

Unknown Speaker: --can refer to it?

Mr. Kneeland: Yes, Your Honor.

It is actually set out in full in the Petition for Writ of Certiorari in the Appendix.

However, it would also be here in the Brief of the Petitioner.

Unknown Speaker: It's page 32(a) of the Appendix?

Mr. Kneeland: 32(a) in the Appendix?

Unknown Speaker: 31(a)... it begins at 31(a).

That's at the Petition?

Mr. Kneeland: Yes, the Petition for Writ of Certiorari.

Unknown Speaker: Certiorari.

Mr. Kneeland: And 1841(c) is the only part of the statute that refers to cases of bodily injury or death.

In fact, it says... and I am paraphrasing, you can read along with me.

The section beforehand requires that you have to have a liability bond for workers in transit.

However, 1841(c) states that in cases of bodily injury or death, that if an employer employs migrant and seasonal workers under state workers' compensation law, and the employer does provide workers'... coverage in the case of bodily injury or death, then no liability policy is required if the workers have that coverage.

On the other hand,--

Unknown Speaker: Do you... do you say that that only applies to automobile accidents?

Mr. Kneeland: --What we are saying, Your Honor, is that that was the logical place to insert it into the statute--

Unknown Speaker: In the section entitled motor vehicle safety?

Mr. Kneeland: --Yes, Your Honor.

Because that--

Unknown Speaker: And that... that's where Congress would choose to express the... the general principle that its monetary remedies are supplanted across the board by state workmen's compensation?

In a section entitled motor vehicle safety?

Mr. Kneeland: --Well, Your Honor, that was, at the time, the major concern of the legislature, the Department of Labor and the others who discussed this, that they wanted to make sure that these workers who are in transit, because migrant... migratory... most of the accident were occurring... and there is a National Safety Council cited in the amicus brief of the American Farm Bureau which is the citation for this.

Most of the injuries--

Unknown Speaker: Well, Miss Kneeland, I thought--

Mr. Kneeland: --Most of the injuries occurred in--

Unknown Speaker: --I thought this section only dealt with whether the employer had to have an insurance policy or liability bond?

Mr. Kneeland: --Well, Your Honor, that section--

Unknown Speaker: Do you find other language in it that deals with something other than whether the employer has to furnish an insurance policy or a liability bond?

Mr. Kneeland: --Well, Your Honor, the language in this statute refers to bodily injury claims.

What it does is allow the substitution of a workers' compensation remedy for the remedy of a liability policy.

And it seems to make no sense... there would be no other reason for the statute to allow the substitution of that remedy for the liability policy unless it was meant to be the comparable.

Unknown Speaker: Well what about 1854(c) or... you know--

Mr. Kneeland: Yes?

Unknown Speaker: --that it says expressly that you shall have a private right of action and that a court who finds an intentional violation can award damages?

Mr. Kneeland: Yes, Your Honor.

1854(c) sets out a private right of action for actual damages or statutory finds or injunctive relief.

And what we are saying is that private right of action is not destroyed by our position.

Our position is simply that the legislature, the Department of Labor, the drafters of the statute, allowed for an alternative form of obtaining bodily injury damages through workers' compensation.

Unknown Speaker: Well, then it really is quite extraordinary that it would go ahead and say that the court... not a commission, but a court can award damages.

Mr. Kneeland: Yes, Your Honor.

Because if there were no workers' compensation remedy permitted, the worker would have to get a liability bond or a liability policy instead--

Unknown Speaker: You mean the employer.

Mr. Kneeland: --Did I say employee?

Unknown Speaker: Yes, you did.

Mr. Kneeland: I'm sorry.

The employer would have to obtain a liability policy or bond.

In which case, the worker, instead of getting the superior remedy of workers' compensation, immediate recovery, and not having the burden of proving a violation or that his injuries were caused by a violation, would have his workers' compensation remedy--

Unknown Speaker: Yes, but may I ask--

Mr. Kneeland: --Whereas--

Unknown Speaker: --May I ask on the... say they had a policy of insurance... they insured for $50,000, say, and the employee had a $60,000 claim.

Would the employee be limited to amount of the policy limits?

Mr. Kneeland: --Your Honor, I believe that the policy limits are 100, 300, or 100, 500--

Unknown Speaker: Well, but the statute doesn't require that, does it?

Mr. Kneeland: --Yes, the regulations do.

Unknown Speaker: Well... the Secretary's regulations?

Mr. Kneeland: There's a regulation, and I'll get to that too.

Unknown Speaker: But supposing the claim then was for $110,000?

Could... would there... would he be limited to the amount that the insurance... the required insurance coverage?

Mr. Kneeland: No, Your Honor.

But in such case, he would have to go to court and prove to a court of law that he is entitled anything at all, even the first penny.

Unknown Speaker: That's... that's right, but--

Mr. Kneeland: Yes.

Unknown Speaker: --in the workmen's compensation, supposing he got... the workmen's compensation recovery was equal to what the insurance would have been if the employer had to have insurance, but since he's got workmen's comp he doesn't need the insurance.

Why can't he get more in one context if he can in the other?

Mr. Kneeland: Well, Your Honor, it would make no sense for this reason.

If... if the drafters had intended him to get above and beyond workers' compensation, they would certainly have never permitted farmers to drop their liability policies.

Unknown Speaker: Well, but they can get above and beyond the liability policy.

Mr. Kneeland: What they have done is given the farmers an alternative and, even in the House report, stated to the farmer, this is all that is necessary, certainly leading every farmer to believe that if he did purchase a workers' compensation policy, that would be a sufficient remedy, since workers' compensation could go on and on--

Unknown Speaker: Well, would you think the farmer believes that if he buys a $100,000 policy, that... that's the extent that he can possibly be liable?

Mr. Kneeland: --No, Your Honor.

But the act, I believe, was meant to encourage workers to... otherwise why would it be included +/?

to encourage the employers to include workers' compensation and elect to include it in... in states where it is elected... elective... and not to oppose the legislature in states where it is not elective or it is mandatory, because it is a far superior remedy.

As Arthur Larson pointed out in his very scathing review of the Eleventh Circuit case below, workers' compensation is not a remedy that you pick apart and you offer only the best part of it, and you take away the other part.

It's a remedy that has two sides to it, as though it's two sides of the same coin.

And one is that there is unlimited workers' compensation for the person who needs it.

It goes on and on and on for what they need, until... until it's determined by the workers' compensation law that they no longer need it.

It is immediate.

They don't have to prove, in this case, that the employer violated anything, or that the violations led to an injury.

They get it immediately, and they get it across the board for any job-related injury in this case.

It's a far broader and better remedy.

Unknown Speaker: Well, that is wonderful, but we're just... we're not debating that.

We're just debating whether it's been provided here.

Mr. Kneeland: Well--

Unknown Speaker: I mean, that's... that's a very good policy perhaps, but has it been provided?

Do you think... do you think, Ms. Kneeland, that... that it is possible for Congress to make a mistake?

Does Congress ever make a mistake?

[Laughter]

Mr. Kneeland: --Congress can make a mistake, Your Honor.

But, also, Congress--

Unknown Speaker: Because I... I really can't figure out why they would want to put an insurance limit, and say don't... so long as you have insurance up to the amount of your workmen's comp,--

Mr. Kneeland: --Well, this bill was drafted--

Unknown Speaker: --that's okay.

I can't see why else they might want to do it except the reason you're giving.

Mr. Kneeland: --Your Honor, this--

Unknown Speaker: But the fact is that they have done nothing in the statute except to say that you have to have insurance.

Now, maybe they had something else in mind, but it seems to me they didn't do it.

Which is why I ask whether you are willing to concede that sometimes Congress does not achieve what it... what it meant to achieve.

Mr. Kneeland: --Well, I would say this.

Sometimes Congress can leave a statute with blanks.

Sometimes Congress can leave ambiguities in the statute, in which case, and in this case, this was an administrative bill, drafted and overseen by the Department of Labor who got the parties together, worked with them through the negotiations for 18 months on a daily basis--

Unknown Speaker: They should have gotten a good draftsman, is what they should have done.

Mr. Kneeland: --Well, Your Honor, these are drafted by committees and groups that got together to try to form a consensus bill to please everyone--

Unknown Speaker: Well, sometimes when you... sometimes when you try to get everybody together, the price for getting it passed is considerable ambiguity.

It satisfies everybody.

Mr. Kneeland: --Well, Your Honor, in this case the... the language of the statute is... is perhaps ambiguous, in which case, you would defer to the Department of Labor's contemporaneous regulations, which were passed to... which were passed to regulate and administer this bill.

And in this case, the Department of Labor, which... this was a Department of Labor bill... oversaw everything, worked with the parties for 18 months before they gave birth to this bill, which was a very long gestation period by any means.

And included for bodily injury and death a substitute remedy which... which brought in, leveraged in, workers' compensation for migrant workers for anything now... falling off the ladder, being plain old klutzy, whatever... brought this protection into the act for them.

And... and perhaps should have, but did not, go back to 1854 and modify some language.

Well, Your Honor, the language in the... in 1854 was put in in 1974 with no comment.

Never... actual damages was never defined.

When it was discussed by anyone in the legislative history, it was discussed in the context of recordkeeping violations, housing standard violations, never in the context of bodily injury claims.

Unknown Speaker: When... when was 1841 put in the statute?

Mr. Kneeland: Oh, all right.

Well, what happen was FLCRA was... that's the Farm Labor Contractor Registration Act... was universally hated and repealed, and AWPA was put in.

It was... I believe... it was passed in December of '82 and went into effect in April of '83.

It was a brand new bill.

Everyone said the old bill didn't work.

Things weren't happening.

Neither side was getting the protections that were necessary.

They wanted to make sure everyone was more fully protected, and so they added this language and brought in, for the first time, workers' compensation as an alternate remedy.

Unknown Speaker: So 1841 came into the statute in 1983 and 1854 came in 1974?

Mr. Kneeland: By a different... it was in a different bill and under a different... probably section or provision number.

But back in 1974, the House and Senate reports both refer to only statutory fines and equitable relief, nothing about actual damages.

And then somewhere along the line... and its not really clear where... the term actual damages was added before it was passed.

And it was with no discussion; it was just added at that time.

Unknown Speaker: But the meaning is fairly clear, of actual damages.

It suggests no punitive damages, but, you know, pain and suffering, doctor bills and the loss of income.

That sort of thing.

Mr. Kneeland: Oh, yes, Your Honor.

You would need that language because in many cases the farmer is not either required to provide comp by state law or he doesn't elect to provide comp, in which case he would only have a liability policy and the farmer would have to... excuse me, the farm employee would have to go to court and bring suit for these actual damages.

So it's necessary that that language is left within the statute for that purpose.

But we are also saying that the regulation drafted by the Department of Labor, which specifically states where a state workers' compensation law is applicable and coverage is provided for migrant and seasonal workers by the employer, workers' compensation benefits are the exclusive remedy for loss under this act in the case of bodily injury or death.

In other words, the regulation is very specific that It is only in the case of loss for bodily injury or death that workers' compensation would be exclusive--

Unknown Speaker: What business is it of the Secretary?

I mean, usually the Secretary issues regulation for matters in which he has a responsibility.

Mr. Kneeland: --Yes.

Unknown Speaker: What responsibility does the Secretary have in this field to go around pronouncing who can sue in courts?

Mr. Kneeland: Well, Your Honor, in the... in the first place, he was given, under several sections of the statute... and they are 1861, which is to promulgate rules and regulations over the entire statute, and 1841(d) specifically for safety... health and safety of the migrant workers, particularly in cases like this where you have workers in transit... was given the authority to draft regulations in order to administer this statute.

Unknown Speaker: Regulations, I assume, governing the individuals who were subject to the act and governing the officials of the Department of Labor who implement the act.

But regulations governing the courts?

Mr. Kneeland: Oh, no, Your Honor.

Not regulations governing the courts, but regulations governing the remedies that were provided by the statute--

Unknown Speaker: Well, that's the courts.

The remedies are judicial remedies and he's issuing a regulation saying the court shall provide no remedy when there is workmen's comp. That's what the regulation reads, isn't it?

Mr. Kneeland: --No, Your Honor.

The court says there is no remedy for actual damages or actually bodily injury or death damages.

The worker can still... and this is were I feel both courts erred in not seeing what the... what the actual plan was in the dovetailing of workers' compensation was... was that for bodily injury claims, workers' compensation was the alternative provided to the worker.

In cases where they wanted to seek through the courts additional remedies, there is still equitable relief or statutory penalties.

Unknown Speaker: Well, I'm not arguing about the scope of it right now.

I'm... I'm just... just questioning what business the Secretary had to stick his nose into this matter.

We defer to the Secretary's regulations within the scope of his responsibility.

But how is it the scope of his responsibility to say what lawsuits the courts will entertain?

Which is what the regulation does, does it not?

Mr. Kneeland: Well, Your Honor--

Unknown Speaker: It effectively says you can't bring a suit in court, if you have workmen's comp.--

Mr. Kneeland: --No, Your Honor.

It said you can't bring a suit in court for your bodily injury claim.

Unknown Speaker: --Okay, fine.

Ms. Kneeland--

Mr. Kneeland: All right.

I... I may not be... I may not be answering your question completely, so I will try again.

What I'm trying to say is the statute... if the statute is silent or ambiguous on this issue, then the Department of Labor regulation may fill the gap.

And since they were there and they were the ones that pushed this bill through and got the people together and were involved all of the way, you would... you would see that by adding workers' compensation, which is understood by everyone to be part and parcel, a two-way street--

Unknown Speaker: --You're right, but you're not answering my question.

Mr. Kneeland: --All right.

I'll try again.

Unknown Speaker: Ms. Kneeland, may I get a question in?

Mr. Kneeland: Yes.

Unknown Speaker: The Solicitor General has not filed a brief amicus in this case, has he?

Mr. Kneeland: No, Your Honor.

Unknown Speaker: Isn't that rather strange that he isn't in here defending the regulation?

Mr. Kneeland: Well, Your Honor, this is not a case where the Department of Labor is a party to the suit.

Unknown Speaker: Well, I know that, but--

Mr. Kneeland: And... yes... and Your Honor--

Unknown Speaker: --It's his regulation that's under fire here.

Mr. Kneeland: --Yes, Your Honor.

And the Department of Labor has never attempted to withdraw this regulation in all this time, nor have they been challenged to do so until this time.

The Adams Fruit opinion came out ten months ago, and the Department of Labor has not made any move to withdraw its regulation.

They have stood by their regulation this entire time, and they may believe that their regulation is certainly being adequately and extremely well defended today.

Unknown Speaker: Well, I take it you are defending the regulation.

Mr. Kneeland: Yes.

Unknown Speaker: And why isn't he?

Mr. Kneeland: Your Honor, there may be reasons why they have not come in that I am not aware of, but that would be outside of this record.

As far as I know, they have made no move in any way to withdraw the regulation in all of this time or to indicate in any way that they no longer stand by this regulation.

Unknown Speaker: Did they move to enforce the regulation?

Mr. Kneeland: As... as far as I know.

I... I don't know that there have been any actions in that regard as well where they privately--

Unknown Speaker: How would they... how would they move to enforce the regulation if they wanted to?

Mr. Kneeland: --I'm not sure I know the answer to that.

I would have to... I... I'm afraid I don't know.

I would have to look through the statute again and see if there is some way that they could move to enforce their own regulation in the courts.

I'm not certain.

I would try... I would like to try to answer the question that I was unsuccessful in answering the first time.

Okay?

The... the argument that the other side appears to make is that the Department of Labor tried to sneak this regulation through and that no one noticed it.

And it would seem to me that if this was such an important aspect of this statute to the migrant worker groups, that they certainly would have taken note of this regulation when it first came out and was published in summary form in April of 1983 and also where it was published in what would be its interim form and comments were requested for 30 days.

There were... according to the August 1983 Federal Register, there was no opposition recorded or no comments about it to the... to the extent that it was incorrect.

And now... all along for 18 months migrant workers' groups were actively involved in the drafting of the statute and actively there for every step of the way as it was brought together.

It would appear that and... and if this was an error on the Department of Labor's part, or something beyond the scope of what they were entitled to do, that would have certainly raised a... a tremendous surge of opposition.

In fact, this regulation has been on the books for nearly seven years, and it is only recently that someone has challenged it.

I'm sorry... I take that back.

The... the actual regulation has only been challenged once, but there is one other case, the Roman case, where actual damages where attempted to be recovered in addition to workers' compensation.

What... what we're trying to say here is that the... the drafters had a purpose for putting workers' compensation in as an alterative.

And it certainly would not have been telling the farmers that they can drop their liability policies and count on their workers' compensation because I don't believe they would have meant to hang the farmer out to dry like that.

They certainly, if they were... if this was meant to afford additional protections to the migrant worker above and beyond workers' compensation, they could have required comp, if it's available, and a liability policy above and beyond that to compensate the workers for additional damages if they brought claims for actual damages through the court.

However, these workers are not deprived of their remedy under 1854.

They can sue to enforce the statute.

And if that means equitable relief or penalties, then... then so be it.

It is where we come to bodily injury claims that it is obvious that a group of people who got together and who in... in FLCRA, the previous bill, had never permitted the substitution of workers' compensation... and this is the substitution of the remedy... determined that they would indeed substitute that remedy.

And what we have now are workers, migrant workers, who are compensated across the board immediately for their injuries in all phases on the job, anytime they are hurt, because they have the workers' compensation remedy at their disposal.

Well, the quid pro quo of that is that the farmer wants to have workers' compensation too.

He wants this to be a remedy, an alternate remedy obviously under AWPA because, number one, he would not be brought into court all the time.

Even if he proved to be totally void of committing any violations, he would have to hire an attorney and go to court and so on and so forth, and we have what amounts to a Federal tort suit then, above and beyond every workers' compensations claim.

We have 19 states where the employer can elect workers' compensation.

In, I believe it's 15 of the states, that's part of the statute, and in four other states, it is just permitted.

Nineteen states where tomorrow the farm employer could say, well, I am not getting anything back from my workers' compensation policies and paying my premiums.

I'm going to have to go out now and purchase a liability policy in addition, even though I have been told that this is all we needed.

Unknown Speaker: Well, Ms. Kneeland, as a practical matter, how much would premiums escalate to provide this additional coverage, assuming there's an offset given in the remedy--

Mr. Kneeland: They would--

Unknown Speaker: --if there is a Federal cause of action for bodily damages and assuming you get an offset for whatever the state workmen's comp provided?

Do you think we are talking about some enormous increase in premium cost?

Mr. Kneeland: --What we're talking about, Your Honor, is double... double premiums, one in a workers' compensation arena and another in a liability arena.

And many of the migrant workers who... excuse me... migrant worker employers who are getting both will feel now there is no necessity to have the one, since they can just get the other if they are going to be sued anyway.

They probably will elect, in states where it's elective, elect not to have comp; simply get a liability policy that will cover everything and pay one premium.

And then in other states where workers' compensation is mandatory, you will absolutely have pressure from the farm groups on the legislature to say, we have to go out and get a liability policy anyway.

Economically, we would be paying for two policies just because this is mandatory in the state.

Let's... let's... give us the election, or let's drop the migrant workers--

Unknown Speaker: Well, is the premium--

Mr. Kneeland: --I don't know--

Unknown Speaker: --double--

Mr. Kneeland: --I don't know.

Unknown Speaker: --when you have an offset?

Mr. Kneeland: I don't know that offsets are ever factored in.

As far as underwriting insurance, I don't know.

I just know that all premiums in all cases now are escalating.

I've seen in the news... it's just... it's getting to be a greater and greater problem.

But what we would like to say is, if this left,... not perhaps Eleventh Circuit version or the Middle District version... but left to workers' compensation as the alternative for bodily injury, then you have workers who are so much better protected in all arenas in the workplace, all areas.

And you would not have the pressure brought on legislature, such as Florida, to eliminate the workers' comp requirement.

And Florida eliminates workers' comp requirements whenever pressure is brought to bear, if you look at Florida's history.

Right now, if you have Jones Act coverage, Harbor Workers, Federal Employee Liability Act, the Florida compensation statute has eliminated workers' compensation.

There are other areas where it has done similar things.

Your Honor... Honors, we would say that the superior remedy--

Unknown Speaker: Ms. Kneeland, your time has expired.

Thank you.

Mr. Tribe.

Argument of Laurence H. Tribe

Mr. Tribe: Mr. Chief Justice, and may it please the Court:

Congress expressly created and rather carefully delimited the private right of action involved in this case after hearing some quite dramatic testimony about actual damages in a disaster in Blythe, California where about 50 migrants were maimed or killed in the crash of a single unsafe vehicle.

Now, there was workers' comp available there.

California was the most generous of the states.

It didn't impress Congress.

Maybe they made a mistake.

But for better or for worse, Congress indisputably concluded that workers' compensation was an inadequate remedy and the House report makes absolutely plain what the language of 1854's predecessor made plain anyway.

That was that they thought an unfettered Federal civil remedy was indispensable if the law was to work--

Unknown Speaker: Well, Mr. Tribe, why... why do you think Congress adopted this insurance liability provision?

It is--

Mr. Tribe: --In 1983?

Unknown Speaker: --Yes.

It is curious because it isn't a good fit under your theory.

Mr. Tribe: Let me turn to that then, Justice O'Connor.

It seems to me one could take the view that its a bad fit, that Congress sometimes makes mistakes and that it's not for this Court or for the Secretary of Labor to rewrite the law.

I think that would be the correct view.

But I'm not so sure that it is all that silly a fit because the history makes absolutely clear what was going on.

They tried in 1978 to actually make workers' compensation the exclusive remedy in what was called the Ireland bill, Representative Ireland of Florida.

And the language of that provision would have been quite explicit.

They were worried not just about being hit with double insurance premiums but being hit with double liability and may be not having an offset.

And so the language of that provision specifically talks about the exclusive remedy provisions of state workers' comp and would have incorporated that.

That was voted down.

Then--

Unknown Speaker: Mr. Tribe, could I ask about that?

The Petitioner's reply brief says that that provision was just like this one.

Mr. Tribe: --But it isn't, Justice Scalia.

I know they say that.

The difference is that it contains the words... the specific words

"exclusive remedy provisions of state workers' compensation. "

and says that it shall conform with that.

Those words, exclusive remedy--

Unknown Speaker: What shall conform with it?

The insurance?

Mr. Tribe: --The insurance shall.

Unknown Speaker: So that--

Mr. Tribe: It's... it's quite possible, Justice Scalia, that if that had become the law, they would have then argued that that was enough for Congress to achieve its purpose, and I think then Congress would have, perhaps, made a mistake.

Because then the purpose was only to substitute, not just... the purpose then was to deal with premiums and double liability.

But there is an obvious purpose to the--

Unknown Speaker: --Well, I... I think that's significant, that every... I'm sorry, you haven't answered Justice O'Connor.

Why don't you finish with Justice O'Connor's question?

Mr. Tribe: --Okay.

And then I will try to get back.

In almost every state their are minimum insurance requirements for vehicle policies.

But that doesn't meet anyone's belief that if they have that insurance, and they are told you needn't get anymore, that there will never be liability over and above it.

Here the idea was that as business enterprises, agribusiness should have the freedom to decide to have lower premiums and to gamble on an occasional big payout, which is what would happen if they chose to rest with workers' comp as the exclusive insurance coverage they would obtain.

If the whole purpose of Congress was as suggested by Petitioner, namely, a kind of promise to the employer that they will be immune from any uninsured liability, then I think it would be incomprehensible, and it would be a much worse fit, because, as Justice Stevens points out, that's not what farmers get here.

In, let's say, the 14 states where there is no workers' compensation for migrants, and in the other seven states where migrants are almost totally excluded, what happens is that if an employer purchases all the insurance that he is required under this law to obtain... and he is required under the law and the regs to have at least as much as the Interstate Commerce Act specifies... he still is exposed to liability over and above that.

It's not a senseless fit.

It makes perfect sense in other areas of the law.

And even if I assume, and I am quite prepared to, that given the precise wording of the Ireland amendment, it too wouldn't have really achieved the extreme purpose of subordinating the Federal liability remedy to state law.

That amendment was rejected.

What we have is something that even if I assume it's equivalent was at most the Ireland amendment.

We do not, however, have anything in the statute which departs from the normal tradition by subordinating the Federal to a state remedy.

Now, when Congress wants to do that, it does it in very specific terms.

The Black Lung Act, about which this Court heard argument just yesterday, was a perfect example.

That gives the Secretary of Labor the role of administering the Federal payout, the Federal relief.

It's not done through judicial action, but it's done through the Secretary.

So, he has some business there and there would be a way to enforce any rules he made about it because he is the administrator.

And then it tells him... the act of Congress tells him to relegate the mine workers to state workers' compensation if he finds that the state... the state system provides adequate compensation.

When Congress wants to do that, it knows how to do it.

It did it in Black Lung.

It did it in a slightly different way, as we point out in our brief, in the Federal Tort Claims Act and in the War Hazards Compensation Act.

But every court that has reviewed a Federal statute which does not incorporate in its language an exclusive state remedy... such as, for example, the Jones Act or the Longshoremen's Act... has understood that the background rule against which Congress is writing is a rule which says that the Federal remedy that you provide is supplementary.

There may be an offset, but it is not suppose to have a hole carved out of it in every place where a state remedy might be provided.

And when that hole is carved, as it was in the Black Lung Act, it's typically carved in a way that gives the Secretary the responsibility of deciding whether the state remedy to which the worker would be relegated is adequate.

It would be extraordinary to decide that regardless of the adequacy or inadequacy of state workers' compensation, when it is provided then the Federal remedy evaporates.

And that is what this free-floating regulation says, the regulation, which is untethered, as Justice Scalia pointed out, to any responsibility that the Secretary of Labor has in administering this law, completely unhinged from any of his functions in standard setting or in investigation or in registration.

It just is a pronouncement.

That regulation--

Unknown Speaker: Mr. Tribe, it is true, though, is it not, that the available... if you get workmen's compensation coverage, you don't have to have any insurance coverage?

Mr. Tribe: --That's... that's correct.

Unknown Speaker: Even though the Federal workmen's compensation coverage in a particular case might provide a recovery of much less than the limits the Secretary would otherwise provide?

Mr. Tribe: Would otherwise... and that really is an anomaly, I think, Justice Stevens.

That I can't make a lot of sense out of.

Unknown Speaker: At least at that extent, the availability of the state remedy cuts back on some of the Federal protection.

Mr. Tribe: And to that extent, Congress might have been aware that that was part of what would happen from this statute.

Because, you see, this issue that the regulation addressed... the issue of the relationship between the Federal remedy and state law... was not one that Congress was inattentive to.

That is, in some instances one might say that Congress simply didn't think about the interaction between state and Federal law, left the matter ambiguous, left a kind of gap for an administrator to fill.

Even then, it seems to me, that under this Court's decisions the role of an agency in filling a gap is limited to its role in filling gaps about what it administers, what's in its charge.

It's not, as Justice Scalia referred to in another case, Junior Varsity--

Unknown Speaker: No, but it is part of the Secretary's responsibility to decide how much insurance people have to carry.

Mr. Tribe: --That's part of his responsibility under 1841.

Unknown Speaker: Right.

Mr. Tribe: But deciding how much insurance they have to carry does not involve regulating the courts in their remedial jurisdiction.

It's one thing to say to the Secretary, you set standards about safety belts and about insurance.

And it's quite another to say, you, as a member of the Executive Branch, tell the Federal Judicial Branch whether to award actual damages.

That would be an extraordinary delegation to the Secretary.

Unknown Speaker: No, but I think... isn't also true that the Secretary has to confront the fact that a lot of farmers may not be solvent enough to pay these very large judgments, and that it really in term... practical terms is trying to figure out how best to get the money to the injured people, and that figuring in the normal case, insurance coverage would be... would be the answer or workmen's comp.--

Mr. Tribe: But unlike the Black Lung law, Justice Stevens, the Secretary's responsibility here is not to assure that the economic welfare of these workers is adequately cared for.

That was the reason that Congress specifically took the economic issue... damages, both actual and statutory... and separated that completely from the Secretary's enforcement and created expressly a private right of action.

The Secretary sets health and safety standards.

And it is true that he's suppose to worry about whether they are undue burdens.

But to say that the Secretary's responsibility here is, in the large, to make sure that some system is put in place that best meets the various needs, economic and otherwise, of the migrants would be an extremely broad delegation of authority, perhaps constitutional, but nowhere to be found in this statute.

That is, in this statute the delegations of authority are very specific.

1841(d) delegates to the Secretary of Labor a power, and indeed a duty, by the effective date of the law to prescribe what it calls the standards required for implementing this section.

And it says to do it through regulations promulgated in accord with 1861, which just absorbs the Administrative Procedures Act.

Unknown Speaker: --Mr. Tribe, you... you must admit the result that's produced is counterintuitive at a minimum.

You're talking about workers who had been disadvantaged workers.

They had been sort of treated as second-class workers, migrants.

They now are in a preferred position.

Had... had this same accident on this farm occurred to some of the resident farm hands, their only remedy would have been the state workmen's compensation.

And now this bill, which one would have thought was at most intended to eliminate the disabilities that migrants had been suffering, places them in a preferred position.

They can go into Federal courts for damages.

Mr. Tribe: Of course, the ability to go into Federal courts in these circumstances and have a lawyer appointed for you is quite extraordinary.

And Congress did it knowingly after being regaled with rather dismal stories of how migrants are badly treated.

Unknown Speaker: We... we don't care about the resident farm hands?

Mr. Tribe: Well, Congress may not have cared about them quite as much.

Unknown Speaker: Workmen's comp is okay for them but the... but the migrants have--

Mr. Tribe: There are--

Unknown Speaker: --This Cadillac treatment in Federal courts.

I think it's... it's not--

Mr. Tribe: --Well, I wouldn't call it... maybe... maybe Chevrolet, Justice Scalia.

[Laughter]

The... the fact is that migrants are treated differently throughout Federal law.

They're not entitled to the protections of OSHA.

They're not entitled to the Fair Labor Standards Act.

They're not covered by the National Labor Relations Act.

On the other hand, they do get preferred treatment under the Child Nutrition Act.

They get preferred treatment under the Food Stamp Act.

They get preferred treatment under the Job Training Act.

It would not be unusual for them to get different treatment here.

And in any event, it's not different treatment that necessarily places them... I must suggest... on some preferred status.

That is, they suffer under a great many other disabilities.

When in 1982, after eight years of the original cause of action, Congress held hearings on how things were going, contrary to the assertion of the Petitioner, it was not difficult to find cases where migrants were maimed despite the private cause of action.

There were 116 cases listed in the September 1982 hearings involving personal injuries resulting from unsafe vehicles, some of them overturning and migrants drowning in two feet of water.

And in those cases... about a third of them actually involved personal injury claims... the reason the conditions continued to be bad... and this is, I think, crucial to understand what compromise was struck in '82... was that under the old law you could only sue the crew leader, the transient crew leader, or the farm labor contractor.

You couldn't go after the agribusiness, the ultimate employer.

And because you couldn't, it was very difficult to obtain judgments, and exploitation continued.

At the same time, the ultimate employers felt quite hassled by being demeaned, they thought... by being treated as though they were just fly-by-night crew leaders and forced to register.

So the compromise was, we won't make you register, but we will subject you, as defendants, to this crucial private cause of action which Senator Hatch who introduced it in the Senate said was vital and said that there was an assurance of full actual damages in every case.

At the same time, we'll also give something--

Unknown Speaker: --Excuse me, you... you don't get the... if... if there's an... that accident you began your presentation with, was that an accident that had occurred on a farm or was that an accident that--

Mr. Tribe: --No... no.

It would have had to have occurred while you were being transported to the farm.

Unknown Speaker: --Right.

By a crew leader.

Mr. Tribe: On the farm--

Unknown Speaker: By a crew leader, not by a private farmer.

And... and most of the other instances you just mentioned as to how many there were, what percentage of those were... were trucks that were being driven by the crew leaders, as opposed to on the farm of the individual?

Mr. Tribe: --The... the crew leader drove one of those trucks where those kids drowned, Justice Scalia.

But the truck's seats were not even attached to the truck, and it belonged to the ultimate farmer.

The farmers in these cases, the growers, would often hide behind the crew leaders.

They would supply an old dilapidated van without seat belts, with equipment that wasn't tied down, and under normal principles of law, one would be able to sue them as the ultimately responsible parties.

But under FLCRA one couldn't do that.

So that Congress broadened the cause of action, so one could reach the responsible source.

But then, in addition to allowing the ultimate agribusiness not to have to register, it put a cap on statutory damages of $500,000, on cumulative statutory damages in any class action.

Unknown Speaker: Well, what about an offset, Mr. Tribe?

Mr. Tribe: We think an offset would make perfect sense.

So did Judge Robert Vance for the Eleventh Circuit.

He said that... and this is the way it's handled in many other areas, like Longshoremen's and others... he said that it is perfectly appropriate for the district court in deciding what actual damages were suffered to take into account the fact that they had collected something like $120,000 among the... among the... I think ten of them... from the Workers' Compensation Board.

We're not suggesting anything like the double dipping or double recovery that Petitioner suggests.

But what we are suggesting is that when Congress goes out of its way to empower a group of workers, not by giving them Cadillacs, by giving them access to Federal court, and when Congress expressly says that they can collect damages in that Federal court, it is not up to the Secretary of Labor in a pronouncement about a part of a statute that he doesn't administer, to rewrite what Congress did.

And indeed, you know, as I think about it, this Court is being asked to rewrite, not only AWPA, but the DOL regulation itself.

Because if I hear her correctly, Ms. Kneeland is now retreating from the position of her original brief, and she is now saying that, well, perhaps you shouldn't really reinstate what the district court did.

You should cut it down the middle... she describes it in terms of setting the pendulum right... and what you should do is allow the suit for statutory damages, which could still by the way, be more than was covered by insurance, could still cripple the farmer, which leaves very little sense in their reading of 1841(c).

Unknown Speaker: Well, there's this... when you say rewriting what Congress did, of course, the question is what did... what did Congress do.

Is it not... from the farmer's point of view, is it not possible to look at the whole package and say, well, they want me to protect these people by buying insurance.

It have two choices.

I can either buy ordinary insurance, in which event I am liable if the... if the policy is not large enough.

Or I can buy workmen's comp insurance in which, if it's like it normally is, that will give me full protection.

Wouldn't the... wouldn't the farmer think that was his choice?

Mr. Tribe: But he could certainly buy both.

There is nothing in this law that would lead any farmer--

Unknown Speaker: Yeah, but they don't want to have spend any more money than they have to, obviously.

And if they think the workmen's compensation will (a) be the better remedy for the worker and also less expensive than buying both, it seems to me its a possible interpretation of what of Congress but together.

Mr. Tribe: --That Congress perhaps entrapped farmers into buying too little insurance and that, therefore, this Court should find some way in the language of this statute--

Unknown Speaker: We don't like to construe--

Mr. Tribe: --to do what Congress knows how to do--

Unknown Speaker: --We do not like to construe the statutes as traps for people who didn't really fully understand them.

Mr. Tribe: --But I don't... I think to be... to be honest, Justice Stevens--

Unknown Speaker: At least I don't.

Mr. Tribe: --the trap for the unwary theory doesn't make me bleed a lot when the damages are made available only when after a full trial you've proven intentional violation of AWPA.

We're not talking about liability that strikes from the blue.

We're not talking about no-fault.

We're not even talking about negligence.

Moreover, these are sophisticated people.

I mean agribusiness... I simply cannot believe that they thought that this law which says not a word about eliminating the Federal cause of action--

Unknown Speaker: You cannot believe they thought it said what the Secretary thought it said.

Mr. Tribe: --It seems to me very implausible that the Secretary thought it said that.

The Secretary thought it gave him power to promulgate that.

Unknown Speaker: The Secretary, it should be added, was the moving force behind this legislation--

Mr. Tribe: Well, in '82--

Unknown Speaker: --This... this was the Department's bill.

Mr. Tribe: --In '82, Justice Scalia.

In '74 when the cause of action was put in place, there was an interesting colloquy between the head of Wages and Hours in Labor and Representative Ford, essentially the patron saint of the migrant worker community in Congress since 1974, in which the Department of Labor was asked, aren't you better off with this private cause of action.

Doesn't it take some of the burden off of you?

And at that point Landis said, you know, I guess you're right.

There's no reason for Labor to resist having this private cause of action.

It does make it somewhat mysterious why the regulation was promulgated, but not so mysterious why the Solicitor General is not here and why the Department of Labor hasn't defended this provision.

That is, this is not something that relates to the Labor Department's responsibilities.

If this regulation is disregarded as obviously ultra vires, it doesn't interfere with any day-to-day responsibility of the Department of Labor.

It doesn't increase their burdens one bit.

It simply carries out what Congress chose to do.

And in this statute, Congress was very specific about the relationships between Federal and state law.

It said that state law would not be fully preempted, because 1871 says that states can add responsibilities on top of the Federal.

It specifically absorbed one defense from state law.

Namely, if you're defined as a labor organization under state law, then you can't be sued under this private cause of action.

In addition to that, it empowers the Secretary to delegate administrative functions to state agencies in Section 1863.

But it says that the Secretary of Labor shall not delegate rule-making authority.

In other words, AWPA clearly spells out a certain model of cooperative Federalism.

And that model bears no resemblance to the wholesale absorption of state law which is accomplished by this regulation.

And you notice not only is the Solicitor General not here, the State of Florida is not here.

Florida, like other states, does not purport to treat the exclusivity of workers' comp as bearing on your right to recover from another legal system.

That was the holding of a Supreme Court of Florida in 1970.

And this Court, in the context of the full faith in credit clause, reached a similar conclusion in Thomas v. Washington Gas Light in 1980.

That is perhaps why the States of Texas, California and Massachusetts, which are the only states this Court has heard from, have basically taken the position that what the Secretary of Labor did was to create a kind of hybrid chimerical contraption which had no resemblance to what the states wanted to, and which in fact hijacked the states' laws, turned them to a purpose the states didn't have in mind.

They weren't trying to kick people out of Federal court.

So the current posture this Court is asked to accept far from a perfect position of a pendulum, involves righting a very strange hybrid law, that would not be recognized as Florida's choice, or as Congress' choice or perhaps even as the choice of the current Secretary of Labor, which it seems to me is not a Federal judicial responsibility.

Unknown Speaker: It would put a lot of pressure on those states that now do not provide workmen's comp coverage for migrant workers to do so.

Mr. Tribe: Well, that theory--

Unknown Speaker: Which has some advantages to migrant workers beyond... beyond this... this field we're talking about.

Mr. Tribe: --If that were an appropriate policy objective for a court to pursue in construing a statute, I suppose one would have to think about that harder.

But as I have thought about it so far, I think it cuts the other way.

Their examples in the first two footnotes of their reply brief where they talk about Texas and Florida, somehow suggest that states really are going to be pressured one way or the other by the change.

But the fact is that Texas, which they give as their initial example, has come before this Court in its amicus brief to say that it wants to have the supplementary availability of Federal relief for migrant workers.

Now, of course, if the Federal relief is withdrawn... the relief that Congress provided... states might be under pressure to do all sorts of things.

But that would be a reason to cut back for the Secretary.

Suppose the Secretary of Labor said, I think workers' comp is great.

I want to pressure states to provide it.

So I say that if it's a small farm that's the defendant, and if the migrants are not hurt beyond a level of $20,000, and I'll set that as a minimum, the Federal cause of action should be eliminated.

That would put a lot of pressure on the states.

But it would surely be beyond his authority and it would not be consistent with this law.

Unknown Speaker: No, I... I suggest it just as an explanation of what Congress perhaps had in mind, not that the Secretary could achieve it.

But it would be... it would be an intelligent objective of Congress.

Mr. Tribe: I suppose it would.

I suppose it would.

If there are no further questions, I think I'll--

Chief Justice Rehnquist: Thank you, Mr. Tribe.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Tribe: The opinion of the Court in No. 88-2035, Adams Fruit Company versus Barrett will be announced by Justice Marshall.

Argument of Justice Marshall

Mr. Marshall: This case is here on writ of certiorari to the Court of Appeals for the Eleventh Circuit.

In an opinion filed with the Clerk today, we hold that the receipt of workman's compensation benefits under state law does not preempt actions under the Agricultural Workers Protection Act.

We, therefore, affirm the judgment of the Eleventh Circuit.