Remarkable as it may seem in this litigation prone world, this is the premier case brought under a statute thirty-six years old. This case raises for the first time1 the question of whether under the Wagner-Peyser Act of 19332 and the regulations3 promulgated by the Secretary of Labor pursuant to that Act migratory farm workers who accept work through the employment system set up by the Act and regulations have rights and remedies for violations. The question is whether these workers have rights and remedies under which they can get relief in Federal Courts when they are deprived of the protection and benefit of the wages and working conditions promised by the Act and regulations by employers and state officials-- state officials charged with the protection of the workers' interest. Here the District Court dismissed the complaint on grounds that it had no jurisdiction and that the complaint failed to state a claim for which relief could be granted. We reverse and remand.

The employment system involved here does not supply only agricultural workers but workers in all areas. It is an interstate system that operates through local, State-controlled offices that are subject to the regulations4 of the Secretary of Labor and that receive applications for work and workers and make a series of attempts in wider and wider areas to fill the applications.5

The system was established in 1933 when Congress passed the Wagner-Peyser Act, which established the United States Employment Service as a bureau of the Department of Labor. The Act's basic objective was to establish an interstate system for the recruiting and transfer of labor.6 The Act, quite obviously, was also intended to offer some protection to those employees who shift about the country7 to meet the needs of those employers who voluntarily use the resources of the federal govewrnment to secure workers.8

These objectives were to be accomplished through that well-known device of 'cooperative federalism', and grant-in-aid system.9 Under the particular system established by the Act, the state agencies, which are substantially funded by federal money and are subject to the regulations of the Secretary of Labor,10 process applications for workers and, after concentric local searches to fill the application, send the request through the interstate facilities of the United States Employment Service.11 Because of its information about the supply of labor in all parts of the country, the Service then is able to forward the application-- 'Clearance Order'-- to a state agency that can fill the request.

In 1951, reflecting the growing national concern about the deplorable condition of many migratory Americans, usually Negroes or Mexican-Americans, who harvest the food for the nation's tables, the Secretary of Labor first promulgated referral standards for farm workers. (16 F.R. 9142). The standards, as those that followed,12 were obviously designed to protect those workers that were acquired when farmers voluntarily sought the benefits of this federal system.

But conditions of farm workers apparently remained much the same despite these and other efforts. Their plight was vividly described by the Secretary of Labor in his letter seeking the Attorney General's opinion on the Secretary's power to promulgate what became substantially the regulations in question here.13 The opinion referring to the Secretary's letter used these strong words: The 'housing provided for migrant farm workers 'has frequently been overcrowded, unsanitary, lacking beds and bedding, unheated, and a fire hazard. Some migrants have even been required to sleep in the open, completely exposed to the elements.' These conditions 'breed disease and thus endanger the health of the whole community."14 The conditions were there summed up in the direct and equally pungent words of the report of a Presidential study commission:

'Beyond wanting migrants to be available when needed and to be gone when not needed, they are expected to work under conditions no longer typical or characteristic of the American standard of life. In a period of rapidly advancing job and employment standards, we expect them to work at employment which, for all practical purposes, has no job standards.'15

It is the 'job standards' promulgated by the Secretary under which Plaintiffs ask for relief. The standards are relevant not because they are self executing and apply of their own force to employing farmers. Rather, they become operative only through voluntary use of this Government Employment Service.16

Plaintiffs, twenty-nine migratory farm workers, six of whom appeal, alleged that in the fall of 1967 Naples Farms, Inc., through Raymond Creel, the superintendent, sought to take advantage of the recruitment service provided by the Florida State Employment Service and the United States Employment Service. The requisite forms were filled out and the request for workers-- 'Clearance Order'-- was eventually sent through the interstate facilities of the United States Employment Service to Texas. In Texas the Texas State Employment Service forwarded the request to Plaintiff Pete Gomez17 in Edinburg, Texas.

Plaintiffs also allege that in response to the request they went to Florida to accept the jobs. When they arrived, however, they found that the wages were lower than those called for in the regulations and the housing was woefully inadequate and far below the requirements18 that should have been met before the request of 'Clearance Order' had been processed. The list of grievances is long: There was no electricity in most cabins.19 None of the cabins had running water and there were no working toilets.20 There were no facilities for garbage pick-up or disposal.21 There was no access to drinking water.22 There were no workable showers.23 And none of the cabins had any heat at all.24

It is also alleged that in February 1968 Plaintiff Gomez sought to rectify the situation. Believing that his proper avenue of redress was the Lee County Board of Health, he got Everett Cooper, a sanitarian for the Lee County Board of Health, to come to the campsite. Far from seeking compliance by the employer with the state health regulations or the regulations of the Secretary of Labor, however, Cooper threatened Gomez with a $500.00 fine for each offense if the houses were not repaired.

The basis of Plaintiffs' complaint against the employees of the state employment agency is that they failed to meet the obligations imposed on them by the regulations. (See note 5, supra). It is directly charged that they made no attempt to determine whether Naples Farms would comply with the regulations and by this failure deprived Plaintiffs of the benefit of these regulations. Naples Farms is alleged to have intentionally deprived Plaintiffs of the protection of the regulations by misleading the State officials. Likewise, Cooper, the sanitarian, is a defendant because of Plaintiffs' claim that he intentionally deprived them of the protection of the regulations. Finally, Plaintiffs allege that all Defendants not only acted intentionally but that they acted jointly and as a part of a conspiracy.

Since there is no diversity jurisdiction, the Plaintiffs, although their damages may be real, can obtain relief through the Federal Court only if damage was done to a federal right that the Federal Courts are empowered to protect. The existence of the federal right in this case turns on whether the Wagner-Peyser Act, 29 U.S.C.A. 49 et seq., and the regulations of the Secretary of Labor promulgated pursuant to the Act bestow rights that the workers may assert, and if so, whether the Wagner-Peyser Act and the regulations created a federal remedy. Additionally, the claim is made under the civil rights acts that the rights created by the regulations and Act, are 'privileges, or immunities secured by the * * * laws'25 of the United States.

We start with the proposition that there can be no doubt that the regulations of the Secretary of Labor were intended to protect the interest of the workers. The conditions were deplorable. (See note 14, supra, and accompanying text). There were no standards. The Secretary was concerned about preventing the use of the federal resources to help prolong these conditions and to subvert other efforts to improve the conditions of the workers. In words attributable to the Secretary of Labor, the regulations were said to be designed to prevent 'the public employment service from being utilized to send workers over long distances to employment providing quarters dangerous to their health and safety.' (Attorney General's opinion note 7, supra at 409). The Secretary's concern with workes, their wages, living and transportation conditions as being at the heart of the Secretary's purpose in promulgating more effective standards is attested by the Attorney General's paraphrase:

'Concerning the proposed wage amendment, it is said that its purpose, like that of the existing regulation, is to prevent the use of the interstate system as a vehicle for undermining prevailing wage rates in the area of employment. As to the transportation amendment, you advise me that like the wage proposal it seeks only equal treatment for employees referred through the interstate recruitment program'.

Attorney General's opinion, note 7, supra at 409.

Just as important as this 'legislative' history in demonstrating the Secretary's purpose is the clear emphasis of the regulations themselves. (See note 5, supra). Who was to be protected by regulations controlling working conditions and wages of these farm laborers who worked for meager wages and under such barbaric conditions? The answer is plain, even though masked at times by euphemisms that cast the objective as avoiding conditions which would jeopardize the reputation or patronage of the employment service as just another private employment agency. Attorney General's opinion, note 7, supra, at 414.

Thus from the 'legislative' history and from the regulations themselves it is plain that they were intended to confer an interest upon migrant farm workers such as Plaintiffs here. There being no explicit indication in the regulations or the Act that the workers were to have the opportunity to protect such conferred interest is not decisive since the existence of such an explicit grant of a remedy is not necessary. A civil remedy may be given to those protected by statutes or regulations by implication. Its sources are broad, including the language and the apparent purpose of the Act and regulations, as well as its 'legislative' history. See Note, implying Civil Remedies From Federal Regulatory Statutes, 77 Harv.L.Rev. 205 (1963).

This implication of a private civil remedy was first recognized by the Supreme Court in 1916 in Texas & Pac. Ry. v. Rigsby, 241 U.S. 33, 36 S. Ct. 482, 60 L. Ed. 874, where the Court held that an employee could recover damages under the Federal Safety Applicance Act. Since Rigsby civil remedies have been implied in areas26 ranging widely from airline regulations27 to control of the trading in corporate securities28 and based upon regulations29 as well as statutes.

This Act, its setting and the regulations call imperatively for implied remedies here if the purpose of the regulations-- the protection of migratory farm workers-- is to be achieved. Experience proved the need for more and stringent standards. Standards were stated and stated in terms relating to workers, their pay and conditions of living and transportation. Who, more than the workers, would be the expected beneficiaries of them? What more effective way will there be to eradicate conditions so deplored? See Attorney General's opinion note 7, supra, at 409. What better way will there be to eliminate the problem of poor workers responding to 'Clearance Orders', journeying hundreds of miles across the country to accept work and the advantage of the benefits promised by the laws of the United States only to find that the promise is a fraud? Absent an implied remedy, the workers have no protection. They would not have even the protection of a criminal sanction. And, civil suits under local concepts hardly meet these conditions.

It is unthinking that Congress, obviously concerned with people, would have left the Secretary with only the sanction of cutting off funds to the state. Moreover, the private civil remedy is a method of policy enforcement long honored explicitly in statutes and by implication with the help of courts. Congress more and more commits to individuals, acting as a private Attorney General, the effectuation of public rights through relief to individuals. See Pettway v. American Cast Iron Pipe Co., 5 Cir., 1969, 411 F.2d 998; Jenkins v. United Gas Corp., 5 Cir., 1968, 400 F.2d 28. (Cases under Title VII of the 1964 Civil Right Act, 42 U.S.C.A. 2000e-3(a)).

Nevertheless, Naples Farms, the employer, argues that, even if there is a private civil remedy under the statute and regulations against the state officials, there is no such remedy against it since neither the regulations nor the statute imposes any duty on the employer. It is true that the basic obligation for insuring that the housing and other working conditions meet the requirements of the regulations is placed on the state agency. (See note 5, supra). This does not mean, however, that the employer has no duty. It is, after all, the working, pay, living and transportation conditions of that requesting employer which the state agency is to check and certify. And, if the employment system is to be workable,30 he has a duty not to intentionally mislead the state officials. When he does so and receives workers he is implicated with such officials.

It is just this type of intentional conduct Plaintiffs allege.31 Whether Plaintiffs can prove this claim is another matter,32 but the complaint is more than adequate to resist a motion to dismiss. Pred v. Board of Public Instruction, 5 Cir., 1969, 415 F.2d 851 and cases cited there at note 1.

Defendant Cooper, the Lee County Sanitarian, also urges that there can be no private cause of action against him under the Wagner-Peyser Act and the regulations since he did not participate in any way with this employment service. But, it is not that simple. The complaint charges that Cooper knew that Plaintiffs were being deprived of housing and working conditions to which they were entitled. And, that he sought to deprive them of means of obtaining redress for their grievances.

Certainly, if Cooper did act in concert with the employer and other state officials, he is subject to similar sanctions. Moreover, the complaint asserts a bold, flagrant retaliation against Plaintiffs for Gomez having sought redress. This type of coercive retaliation, for which appropriate remedies have been offered, has traditionally been in violation of similar statutes setting 'job standards' in other areas. See e.g., Nash v. Florida Indus. Comm'n, 1967, 389 U.S. 235, 238, 88 S. Ct. 362, 365, 19 L. Ed. 2d 438, 442 (NLRA); Mitchell v. Robert De Mario Jewelry, Inc., 1960, 361 U.S. 288, 80 S. Ct. 332, 4 L. Ed. 2d 323 (FLSA); Pettway v. American Cast Iron Pipe Co., 5 Cir., 1969, 411 F.2d 998, 1005-1007 (Title VII of the 1964 Civil Rights Act). At this stage, we see no reason why such conduct does not give rise to relief here.

We are not, however, limited to the existence of an implied civil remedy under these migratory-labor regulations to hold that Plaintiffs have stated a claim for which relief can be granted against either Naples Farms, Mr. Cooper, or the employees of the Florida State Employment Agency. Under the Civil Rights Acts, Congress has provided a general statute giving a civil remedy to those persons who are deprived 'under color of law' of 'any rights * * * secured by the Constitution and laws (of the United States).'33 42 U.S.C.A. 1983.

The state action necessary under 1983 clearly exists as to the employees of the Florida State Employment Agency and the Lee County Sanitarian, Mr. Cooper. Moreover, no difficulty in regards to state action arises as to Naples Farms in view of the positive charges that must be credited.

The complaint alleges-- and with sufficient specificity (see note 32, supra)-- that all defendants acted jointly and as a part of a plan or conspiracy to deprive Plaintiffs of the rights granted them by the regulations. (See note 32, supra). The Supreme Court in United States v. Price, 1966, 383 U.S. 787, 86 S. Ct. 1152, 16 L. Ed. 2d 267, in construing 18 U.S.C.A. 242, the criminal counterpart to 1983, held that:

'Private persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law for purposes of the statute. To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.' 383 U.S. at 794, 86 S.Ct. at 1157, 16 L. Ed. 2d at 272.

See also Baldwin v. Morgan, 5 Cir., 1961, 287 F.2d 750.34

Even with the necessary State action present for all parties, Defendants contend, and the District Court held, that 1983 is not available to Plaintiffs since 'the type of 'rights' which the plaintiffs alleged they were denied or deprived are not those protected under the Civil Rights Acts relied upon.' Order of District Court dismissing complaint.

It is true that 1983 has quite often been used as a means of protecting Constitutionally guaranteed rights, particularly in the area of equal protection of the Negro.35 But the language of this civil rights stattue is broad: it is a violation of the statute to transgress 'any rights, privileges, or immunities secured by the Constitution and laws' of the United States. 42 U.S.C.A. 1983. Moreover, the Supreme Court in Peacock v. City of Greenwood, 1964, 384 U.S. 808, 86 S. Ct. 1800, 16 L. Ed. 2d 944, clearly indicated that 1983 was appolicable when statutory, as well as, constitutional 'rights, privileges and immunities' were involved. The Court said: 'Under 42 U.S.C.A. 1983 * * * the officers may be made to respond in damages not only for violations of rights conferred by federal equal civil rights laws, but for violations of other federal constitutional and statutory rights as well.' 384 U.S. at 829-30, 86 S.Ct. at 1913, 16 L. Ed. 2d at 958. See also, Sheridan v. Garrison, 5 Cir., 1969, 415 F.2d 699, at 705, 706.

Despite these authorities and the clear purport of the language of the statute, Defendants argue that 1983 does not provide a basis for recovery. The argument is based on statements in several cases that 1983 does not protect property rights.36

We need not determine the extent to which 'property' rights are outside of 1983 recourse37 since the essence of the claim here is the denial of rights of an essentially personal nature, touching such intimate things as living and eating conditions, freedom from the marks of modern peonage, work at starvation wage levels in degrading property.

The aim of the Plaintiffs, through appropriate judicial remedies, is to secure for themselves the fundamentals of human dignity. They seek to protect their right to decent housing and sanitary living conditions so they and their children may be free of disease. They seek to protect their ability to work for the wages which Congress has in effect determined to be the minimum to which they are entitled. They seek sanctions for having been deprived of some of those few protections designed by Congress to lift them out of economic-sociologic peonage. Such fundamental human, highly personalized rights are just the stuff from which 1983 claims are to be made.

In addition to the argument that Plaintiffs have stated no claim for which relief may be granted, Defendants argue that the Trial Court was correct in holding that it had no jurisdiction to hear the claims, even if such claims were stated, since the requisite jurisdictional amount is not claimed, 28 U.S.C.A. 1331.38

But that is not the end of the matter since 28 U.S.C.A. 1343 and its interplay with 42 U.S.C.A. 1983 adequately supply jurisdiction.39 Additionally, jurisdiction is established by 28 U.S.C.A. 1337,40 which provides that the District Court has original jurisdiction of any cause of action arising under a statute regulating interestate commerce. There is no requirement for any jurisdictional amount. Almost every conceivable test of 'arising under' is met. The claim is a direct assertion of federal statutory (regulatory) rights. Also, construction one way or the other will have a direct bearing on recovery or non-recovery. Florida East Coast Ry. Co. v. Jacksonville Terminal Co., 5 Cir., 1974, 328 F.2d 720, cert. denied, 379 U.S. 830, 85 S. Ct. 59, 13 L. Ed. 2d 38; cf. Mungin v. Florida East Coast Ry., 5 Cir., 1969, 416 F.2d 1169. The complaint both directly invokes the regulations as a basis for relief and brings the construction of the Wagner-Peyser Act and the regulations into direct question. The whole structure is to regulate the interstate flow of workers to places of need from places of surplus. This is interstate commerce in its plainest form.41

Thus we hold that the complaint does state claims for which relief may be given and that on the basis of this complaint the District Court has jurisdiction to hear these claims. Now the real facts-- not just what the lawyers say the facts are-- must be ascertained. And, after these facts are determined the remedies to be given, if-- and the if may be substantial-- Plaintiffs can prove their case, must be determined. These remedies may be, and probably will be, different for the various Defendants. Thus, when the real facts are determined, it may be that money damages, which are appropriate against the private defendants may not be appropriate for all defendants. But, we leave this case to the superintendence of the Trial Judge without even a murmur of how it should come out either on the intrinsic merits or the relief to be granted.42

Rehearing Denied Sept. 19, 1969.