Unpublished Disposition, 940 F.2d 1533 (9th Cir. 1990)

MEMORANDUM^* 

In November, 1989, appellants filed suit against five apple and pear growers in Washington State, the Department of Labor ("DOL"), the Attorney General, and the Immigration and Naturalization Service seeking declaratory and injunctive relief under the Administrative Procedures Act ("APA"). The appellants alleged that DOL's approval of the growers's 1989 applications for temporary agricultural labor certifications failed to comply with agency regulations. The growers motion to dismiss the claims against them was granted in January, 1990. DOL's motion for summary judgment was granted on April 23, 1990. The appellants filed a timely appeal. We dismiss the appeal and vacate the decision below.

Facts and Proceedings.

In July, 1989, five apple and pear growers in Washington State submitted an application pursuant to the H-2A program for 1,626 temporary foreign workers. The application included provisions requiring workers to damage no more than three percent of the apples picked and permitted workers to pick in teams. DOL never objected to the team picking provision but rejected the three percent limit on damaged fruit. DOL permitted a five percent standard, however, and the growers amended their application to reflect the five percent standard.

On August 15, 1989, the appellants filed the present suit alleging that the DOL failed to comply with statutory and regulatory requirements when it approved of the five percent damage standard and the team picking provision. On August 29, 1990, the appellant's request for temporary relief was denied.

On September 13, 1989, the DOL informed the growers that more U.S. workers responded to the job offers than there were jobs available. Because there were a sufficient number of U.S. workers available for the jobs, the Attorney General, as required under 8 U.S.C. § 1108(a) (1) (A) denied the growers' request for importation of foreign workers.

On January 18, 1990, the district court granted the growers' motion to dismiss the claims against them. The remaining parties filed cross motions for summary judgment and a hearing on the motions was heard on April 20, 1990. The court granted the defendants's motion stating that DOL's decision was not arbitrary or capricious. The appellants filed a timely appeal.

Discussion.

Appellants argue on appeal that the DOL violated the Administrative Procedures Act when it approved of the growers' job order containing the five percent damage standard and team picking provisions. Because we find the appeal moot we do not decide these issues.

"Federal Courts are without power to decide questions that cannot affect the rights of litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246 (1971). A federal court must resolve a question of mootness before it can exercise jurisdiction. Id.

The appellants seek to (1) enjoin appellees from circulating clearance orders that include the five percent damage standard and the team picking provision; (2) enjoin appellees from granting labor certification to growers until these provisions are deleted; (3) enjoin the Immigration and Naturalization Service from issuing visas to foreign workers until the provisions are deleted.¹  None of the activity complained of is occurring or is about to occur. The relief sought is in connection with the growers' 1989 application concerning the 1989 harvesting season. The growers are no longer circulating any clearance orders. Although the growers' applications were approved by DOL, certification of the application for importation of foreign workers was eventually denied. No visas were ever issued. Because we cannot grant the relief sought by plaintiffs, this case is moot. See Allard v. DeLorean, 884 F.2d 464, 466 (9th Cir. 1989) ("A case is moot if it has lost its character as a present live controversy"); United States v. Oregon, 718 F.2d 299, 302 (9th Cir. 1983) ("A case is moot if the reviewing court can no longer grant effective relief").

A case, otherwise moot, may be reviewed by this court if it is "capable of repetition yet evading review." Southern Pacific Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911); United States v. Oregon, 718 F.2d at 302.

The district court, in dismissing the claims against the growers, relied on this exception. The court stated,

[i]t is clear that the present controversy is capable of repetition. Grower defendants need merely renew their application for H-2A certification to regenerate the issues now before this Court. Moreover, the dispute between the parties is likely to evade review given the limited harvest season for apples and pears. Accordingly, plaintiffs' claims against grower defendants for injunctive relief are not moot.

The hypothetical possibility that the growers may renew their application, however, is insufficient. The Supreme Court has stated:

The Court has never held that a mere physical or theoretical possibility was sufficient to satisfy the [mootness] test.... If this were true, virtually any matter of short duration would be reviewable. Rather, we have said that there must be a 'reasonable expectation' or a 'demonstrated probability' that the same controversy will recur involving the same complaining party.

Murphy v. Hunt, 455 U.S. 478, 482 (1982) (quoting Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 187 (1979)).

Prior to 1989 no grower in the state of Washington had applied for the importation of foreign workers under the H-2A program. In 1989, five growers in the north-central area of Washington submitted H-2A applications. In that year, no foreign workers were imported pursuant to the program because sufficient United States workers accepted the job offers. No growers in the area made use of the system in 1990 and neither DOL nor appellants could provide any evidence that growers in north central Washington would use the H-2A program or Wagner-Peyser system again in the future. We find on the facts of this case neither a reasonable expectation nor a demonstrable probability that this case, involving the same parties, will recur.² 

A second exception to the mootness doctrine permits review of cases in which the decision below will have collateral legal consequences. Koppers Industries, Inc. v. Environmental Protection Agency, 902 F.2d 756, 758 (9th Cir. 1990). DOL has stated that it decided "not to press a mootness claim" because the grower applicants would be bound under DOL regulations to the productivity and quality standards that were approved in 1989.³  This form of regulatory estoppel, however, would only apply to the five growers who applied in 1989. If different north central Washington growers applied they would not be bound by the standards included in the prior applications. The possibility that the five growers will apply again and be bound by their prior application is an insufficient collateral consequence to warrant the exercise of our jurisdiction. See id. (" [t]he speculative contingency that such issues might arise afford [s] no basis for our passing on the substantive issues") (citations and internal quotations omitted); Allard, 884 F.2d at 466 n. 1 (potential malicious prosecution action is "too remote a consequence" to forestall a finding of mootness).

Conclusion.

Because we find this case moot, the appeal is dismissed and the district court's decision is vacated. See Karcher v. May, 484 U.S. 72, 82 (1987); United States v. Munsingwear, 340 U.S. 36, 39-40 (1950); Allard, 884 F.2d at 467.

DISMISSED AND VACATED.