certification of an alien worker for the same job." Id. at 135. The Court found that the plaintiff could state a claim under the INA, relying on "the unique situation of Guam's immigration laws," id. at 137, and a group of cases which it claimed had found a private right of action under the INA.
There are two differences between alien labor certifications for Guam and alien labor certifications for the rest of the United States. First, the Governor of Guam, rather than the Secretary of Labor, has authority to issue Guam labor certifications. 8 C.F.R. § 214.2(h)(6)(v) (1997). Second, the regulations give courts the authority to adjudicate whether the Governor of Guam's certification was procured fraudulently. 8 C.F.R. § 214.2(h)(6)(v)(H)(1). To the extent that Garrison's holding was based on the unique rules for alien labor certifications in Guam, that case is distinguishable on that basis. Here, the work at issue was not to be performed in Guam; therefore, the Secretary of Labor had authority over the labor certification process, and there is no regulation which provides for court review of the Secretary of Labor's certification.
However, the Garrison Court suggested that a private right of action exists for domestic workers under the INA even outside Guam. It relied on several cases which it claimed had "found private injuries on behalf of domestic workers in situations where aliens had been hired." 864 F. Supp. at 135. It read these cases to conflict with the cases noted above which held that a domestic worker has no federal private right of action under the INA against prospective employers. However, none of the cases cited by Garrison actually supports the finding of a private right of action under the INA in this case, and none conflicts with the cases cited above.
The Garrison Court cited International Union of Bricklayers and Allied Craftsmen v. Meese, 245 U.S. App. D.C. 395, 761 F.2d 798 (9th Cir. 1985), in which the plaintiffs, several unions, sued the Attorney General, the Secretary of State and the INS, claiming that internal INS guidelines relating to the admission of temporary alien workers bypassed procedures required by the INA. The Court found subject matter jurisdiction because the plaintiffs charged that the INS guidelines violated the procedure required by the INA, and "federal courts have jurisdiction over this type of case to assure that the executive departments abide by the legislatively mandated procedures." 761 F.2d at 801. Citing the prudential standing requirement that a plaintiff fall within the "zone of interests" protected or regulated by the statute at issue, the Court found that the plaintiffs fell within the zone of interests of the INA sections at issue in that case, relating to temporary employment of alien workers. The Court noted that for a plaintiff to fall within the zone of interests, he must show "some indicia -- however slight -- that [he] was intended to be protected, benefited or regulated by the statute under which suit is brought." Id. at 804 (quotations and citations omitted). The Court found that the section relating to employment of temporary alien workers showed a "congressional concern for and a desire to protect the interests of the American workforce," and held that the plaintiffs had standing. Id.
Similarly, in International Longshoremen's and Warehousemen's Union v. Meese, 891 F.2d 1374 (9th Cir. 1989), the plaintiffs, a union and several of its locals, charged that the INS interpretation and application of a statutory provision was unlawful. The Court found subject matter jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (the "APA"), which provides a right to judicial review in favor of any person adversely affected or aggrieved by agency action. 891 F.2d at 1378. Addressing the plaintiffs' standing, the Court found that the plaintiffs were within the INA's zone of interests, because "[a] primary purpose of the immigration laws, with their quotas and certification procedures, is to protect American laborers." Id. at 1379. Other cases also have found that domestic workers are within the zone of interests of the INA when they claim that actions by the Secretary of Labor violated the INA. See Martinez v. Reich, 934 F. Supp. 232, 235-36 (S.D. Tex. 1996); Comite de Apoyo Para Los Trabajadores Agricolas (CATA) v. Dole, 731 F. Supp. 541, 544 (D.D.C. 1990).
Contrary to the Garrison Court's reading of these cases, they do not suggest that a domestic worker has an implied right of action under the INA against an employer. Rather, these cases all involved challenges to INS or Secretary of Labor actions which were alleged to be contrary to statute and therefore were actionable under the APA, or as the International Union of Bricklayers Court held, under other authority permitting such actions to ensure that "executive departments abide by the legislatively mandated procedures." International Union of Bricklayers, 761 F.2d at 801. These Courts therefore focused on whether a plaintiff had standing to challenge the particular action as violating the statute; the plaintiffs needed to show only that they fell within the zone of interests of the statute, a minimal showing. As the Supreme Court has stated, "The ["zone of interests"] test is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff." Clarke v. Securities Indus. Assoc., 479 U.S. 388, 399-400, 93 L. Ed. 2d 757, 107 S. Ct. 750 (1987); see also National Weather Serv. Employees Org. v. Brown, 18 F.3d 986, 989 (2d Cir. 1994).
The plaintiff here, like the plaintiff in Garrison, does not challenge an agency action and may not proceed under the APA or other authority that confers subject matter jurisdiction over actions against regulatory agencies. Thus, even if plaintiff falls arguably within the statute's zone of interests, he can challenge a violation of the statute by the employer only if the statute creates an implied private right of action in his favor. As noted above, finding an implied private right of action requires a showing that Congress intended to benefit a special class and create a right of action in favor of that class. That showing is more demanding that merely satisfying the zone of interests test. In fact, the Supreme Court in Clarke said specifically that Cort requires more than satisfying the zone of interests test: "Clearly, the Court was requiring more from the would-be plaintiffs in Cort than a showing that their interests were arguably within the zone protected or regulated by [the statute at issue in Cort ]." Clarke, 479 U.S. at 400 n.16; see also Hernandez-Avalos v. Immigration and Naturalization Serv., 50 F.3d 842, 846 (10th Cir. 1995) ("It is more difficult to establish a private right of action than to demonstrate that one's interest falls within the zone of interests protected by the statute."), cert. denied, 116 S. Ct. 92 (1995). Therefore, even though the cases cited by Garrison held that domestic workers fell within the INA's zone of interests, and therefore had standing under the APA or otherwise to contest regulatory actions, those cases do not support a finding of an implied right of action under the INA against employers.
The Garrison Court relied on two other cases -- Alfred Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 73 L. Ed. 2d 995, 102 S. Ct. 3260 (1982) and Galindo v. Del Monte Corp., 382 F. Supp. 464 (N.D. Ill. 1974) -- which are also distinguishable. Both concern the Wagner-Peyser Act, 29 U.S.C. § 49 et seq., not the INA. Indeed, the Galindo Court actually distinguished its case from cases concerning whether to infer a private right of action under the INA. 382 F. Supp. at 468. Alfred Snapp & Son dealt with whether a state had parens patriae standing to bring suit, and did not directly address the existence of a private right of action. Because the Garrison Court based its decision on the provisions of the INA applicable solely to Guam, and because the case law on which it relied is inapposite to this case, I decline to follow Garrison. I find that no private right of action exists under the INA for a domestic worker against an employer based on submission of a fraudulent application for labor certification or on employment of an alien under such a fraudulently obtained certification. Accordingly, plaintiff's first claim must be dismissed.
Plaintiff's claim under the FCA fails as well. The FCA imposes liability on "any person who . . . [inter alia ], knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval [or] knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government [or] conspires to defraud the Government by getting a false or fraudulent claim allowed or paid." 31 U.S.C. § 3729(a)(1)-(3) (1994). The statute defines "claim" to include "any request or demand, whether under a contract or otherwise, for money or property which is made to a contractor, grantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded, or if the Government will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded." 31 U.S.C. § 3729(c) (1994). Therefore, "only (i) actions which have the purpose and effect of causing the government to pay out money where it is not due . . . or (ii) actions which intentionally deprive the government of money it is lawfully owed . . . are considered 'claims' within the meaning of the FCA." United States ex rel. Windsor v. DynCorp, 895 F. Supp. 844, 850 (E.D. Va. 1995) (citations and quotations omitted).
Here, plaintiff has not alleged that defendant made any false or fraudulent statement which caused the government to pay money or which allowed defendant to deprive the government of money owed. Rather, plaintiff claims that defendant made a fraudulent statement to obtain certification for its alien employee. Such statement is not made in relation to a "claim" as defined by the statute, and plaintiff's FCA action must be dismissed.
Although the FCA provides that an action by a private person pursuant to the False Claims Act "may be dismissed only if the Court and the Attorney General give written consent to the dismissal and their reasons for consenting," 31 U.S.C. § 3730(b)(1) (1994), and although the Government in declining to intervene reserved its right to withhold such consent, the Second Circuit has interpreted this provision to require the Government's consent to dismiss only in cases where the plaintiff wishes to discontinue the action voluntarily, not where the court orders dismissal. See Minotti v. Lensink, 895 F.2d 100, 103-04 (2d Cir. 1990). Therefore, Government consent to dismiss this action is unnecessary.
Finally, because plaintiff proceeds pro se, his complaint must be read liberally. There are two other claims which colorably might arise from his complaint. First, plaintiff might press a claim under 8 U.S.C. § 1324b which, inter alia, protects United States citizens from discrimination in hiring or discharge on the basis of their citizenship. 8 U.S.C. § 1324b(a) (1994). However, this claim fails both because the statute seems to provide for a purely administrative review of these claims, with provision for appeal of any order to the Court of Appeals, id. § 1324b(b)-(j), and because the statute requires that any claim be filed within 180 days of the discriminatory activity; plaintiff filed his claim 15 months after the alleged discriminatory activity.
Second, plaintiff might press a claim under 42 U.S.C. § 1981(a), which prohibits discrimination in the making and enforcement of contracts. However, even if plaintiff could maintain a § 1981 action asserting discrimination based on his American citizenship, which is open to question, compare Jatoi v. Hurst-Euless-Bedford Hosp. Auth., 807 F.2d 1214, 1219 (5th Cir.) (dismissing § 1981 claim because even though § 1981 permits claims of discrimination of the basis of alienage, plaintiff was a United States citizen), modified, 819 F.2d 545 (5th Cir. 1987), cert. denied, 484 U.S. 1010 (1988) ; Chaiffetz v. Robertson Research Holding, Ltd., 798 F.2d 731, 735 (5th Cir. 1986); Chacko v. Texas A&M Univ., 960 F. Supp. 1180, 1191 (S.D. Tex. 1997) (noting that plaintiff was in a protected class under § 1981 because he was a non-citizen); Rios v. Marshall, 530 F. Supp. 351, 360-61 (S.D.N.Y. 1981) ("Plaintiff's allege discrimination on the basis of citizenship, not race, and therefore do not state a claim for relief under § 1981"), with Cheung v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 913 F. Supp. 248, 251 (S.D.N.Y. 1996) (holding that § 1981 prohibits private discrimination on the basis of citizenship), plaintiff's complaint and affirmation, even interpreted liberally, fail to allege any facts, or even conclusory allegations, from which it can be inferred that defendant refused to hire plaintiff because he is a United States citizen. Rather, the only inference that can be drawn from plaintiff's complaint is that defendant did not hire plaintiff because defendant preferred Tukuru, not because plaintiff was a United States citizen.
* * *
For the reasons stated above, defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(c) is granted, and plaintiff's complaint is dismissed.
Dated: New York, New York
July 9, 1997
Michael B. Mukasey,
U.S. District Judge