Respondent Commonwealth of Puerto Rico filed suit in Federal
District Court against petitioners, individuals and companies
engaged in the apple industry in Virginia, alleging that
petitioners had violated related provisions of the Wagner-Peyser
Act and the Immigration and Nationality Act of 1952, and
implementing regulations. The purposes of this statutory and
regulatory scheme are to give United States workers, including
citizens of Puerto Rico, a preference over temporary foreign
workers for jobs that become available within this country, to
ensure that working conditions of domestic employees are not
adversely affected when foreign workers are brought in, and to
prohibit discrimination against United States workers in favor of
foreign workers. It was alleged that, pursuant to the federal laws,
petitioners had reported 787 job openings for temporary farm labor
to pick the 1978 apple crop, and that, in violation of such laws,
petitioners had discriminated against Puerto Rican workers by
failing to provide employment for qualified Puerto Rican migrant
farmworkers, by subjecting those Puerto Rican workers that were
employed to working conditions more burdensome than those
established for temporary foreign workers, and by improperly
terminating employment of Puerto Rican workers. Seeking declaratory
and injunctive relief in its capacity as parens patriae,
Puerto Rico asserted that this alleged discrimination deprived the
Commonwealth of its right "to effectively participate in the
benefits of the Federal Employment Service System of which it is a
part," and thereby caused irreparable injury to the Commonwealth's
efforts "to promote opportunities for profitable employment for
Puerto Rican laborers and to reduce unemployment in the
Commonwealth." The District Court dismissed the complaint, holding
that Puerto Rico lacked standing to bring the action in view of the
small number of individuals directly involved and the slight impact
upon Puerto Rico's general economy that the loss of 787 temporary
jobs could have. The Court of Appeals reversed.
Puerto Rico has parens patriae
to maintain this suit. Pp.
458 U. S. 600
Page 458 U. S. 593
(a) In order to maintain a parens patriae
State must articulate an interest apart from the interests of
particular private parties, that is, the State must be more than a
nominal party. The State must express a "quasi-sovereign" interest,
such as its interest in the health and wellbeing -- both physical
and economic -- of its residents in general. Although more must be
alleged than injury to an identifiable group of individual
residents, the indirect effects of the injury must be considered as
well in determining whether the State has alleged injury to a
sufficiently substantial segment of its population. A State also
has a quasi-sovereign interest in not being discriminatorily denied
its rightful status within the federal system -- that is, in
ensuring that the State and its general population are not excluded
from the benefits that are to flow from participation in the
federal system. Pp. 458 U. S.
(b) Under the above principles, Puerto Rico's allegations that
petitioners discriminated against Puerto Ricans in favor of foreign
laborers falls within the Commonwealth's quasi-sovereign interest
in the general wellbeing of its citizens. A State's interest in the
wellbeing of its residents, which extends beyond mere physical
interests to economic and commercial interests, also includes the
State's substantial interest in securing its residents from the
harmful effects of discrimination. This interest is peculiarly
strong in the case of Puerto Rico simply because of the fact that
invidious discrimination frequently occurs along ethnic lines.
Alternatively, Puerto Rico has "parens patriae
to pursue its residents' interests in the Commonwealth's full and
equal participation in the federal employment service scheme
established by the laws involved here. Pp. 458 U. S.
632 F.2d 365, affirmed.
WHITE, J., delivered the opinion of the Court, in which all
other Members joined, except POWELL, J., who took no part in the
decision of the case. BRENNAN, J., filed a concurring opinion, in
which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post,
p. 458 U. S.
Page 458 U. S. 594
JUSTICE WHITE delivered the opinion of the Court.
In this case, the Commonwealth of Puerto Rico seeks to bring
suit in its capacity as parens patriae
for their alleged violations of federal law. Puerto Rico contends
that those violations discriminated against Puerto Ricans and
injured the Puerto Rican economy. The question presented here is
whether Puerto Rico has standing to maintain this suit.
The factual background of this case involves the interaction of
two federal statutes, the Wagner-Peyser Act, 48 Stat. 113, 29
U.S.C. § 49 et seq.,
and the Immigration and Nationality
Act of 1952, 66 Stat. 163, as amended, 8 U.S.C. § 1101 et
(1976 ed. and Supp. IV). The Wagner-Peyser Act was passed
in 1933 in order to deal with the massive problem of unemployment
resulting from the Depression. The Act establishes the United
States Employment Service within the Department of Labor "[i]n
order to promote the establishment and maintenance of a national
system of public employment offices." 29 U.S.C. § 49. State
agencies, which have been approved by the Secretary of Labor, are
authorized to participate in the nationwide employment service.
] § 49g. The
Secretary is authorized to make "such rules and regulations as may
be necessary" to accomplish the ends of the Act. § 49k. Federal
regulations issued pursuant to that authority
Page 458 U. S. 595
have established an interstate clearance system to provide
employers a means of recruiting nonlocal workers when the supply of
local workers is inadequate. 20 CFR § 602.2(c) (1981). If local
workers are not available, a "clearance order" is sent through the
Employment and Training Administration of the Department of Labor
to other state agencies in order to give them an opportunity to
meet the request.
Some of petitioners' obligations under the employment system
established by the Wagner-Peyser Act stem from the Immigration and
Nationality Act of 1952, insofar as it regulates the admission of
nonimmigrant aliens into the United States. The latter Act
authorizes the admission of temporary foreign workers into the
United States only "if unemployed persons capable of performing
such service or labor cannot be found in this country." 8 U.S.C. §
1101(a)(15) (H)(ii). The Attorney General is charged with
determining whether entry of foreign workers would meet this
standard, "upon petition of the importing employer." 8 U.S.C. §
1184(c). He is to make this determination "after consultation with
appropriate agencies of the Government." Ibid.
Attorney General has delegated this responsibility to the
Commissioner of Immigration and Naturalization, 8 CFR § 2.1 (1982),
who, in turn, relies on the Secretary of Labor for the initial
determinations. 8 CFR § 214.2(h)(3) (1982). [Footnote 2
] To meet this responsibility, the
Secretary of Labor relies upon the employment referral system
established under the Wagner-Peyser Act.
Any employer who wants to employ temporary foreign agricultural
laborers must first seek domestic laborers for the openings through
use of the interstate clearance system.
Page 458 U. S. 596
The employer who anticipates a need for foreign laborers must
file an application with the local public employment office,
including a copy of the job offer. 20 CFR §§ 655.201 (a)(1), (b)(1)
(1981). The application must be filed in sufficient time to allow
the agency to recruit through the interstate clearance system for
60 days prior to the estimated date of the start of employment. §
655.201(c). The regulations further provide that the employer must
include assurances that the job opportunity is
"open to all qualified U.S. workers without regard to race,
color, national origin, sex, or religion, and is open to U.S.
workers with handicaps who are qualified to perform the work,"
and that the employer will continue to seek United States
workers until the foreign workers have departed for the employer's
place of employment. §§ 655.203(c), (d). [Footnote 3
] Finally, the regulations require that
"each employer's job offer to U.S. workers must offer U.S.
workers at least the same benefits which the employer is offering,
intends to offer, or will afford, to temporary foreign
§ 655.202(a). Similarly, the employer may not impose obligations
or restrictions on domestic workers that are not, or will not be,
imposed on foreign workers. Ibid.
The obvious point of this somewhat complicated statutory and
regulatory framework is to provide two assurances to United States
workers, including the citizens of Puerto Rico. First, these
workers are given a preference over foreign workers for jobs that
become available within this country. Second, to the extent that
foreign workers are brought in, the working conditions of domestic
employees are not to be adversely affected, nor are United States
workers to be discriminated against in favor of foreign
Page 458 U. S. 597
The particular facts of this case involve the 1978 apple harvest
on the east coast. That was apparently a good year for apples,
resulting in a substantial need for temporary farm laborers to pick
the crop. To meet this need, the apple growers filed clearance
orders with their state employment agencies. Through the system
described above, a total of 2,318 job openings were transmitted to
Puerto Rico on August 2, 1978. As of August 14, which marked the
end of the 60-day "availability" period, supra,
458 U. S. 596
the Commonwealth Department of Labor had recruited 1,094 Puerto
Rican workers. Puerto Rican workers for the remaining openings were
subsequently recruited. As stated in Puerto Rico's complaint:
"Of this total number of 2,318 Puerto Rican workers, only 992
actually arrived on the mainland. The remainder never left Puerto
Rico, because of oral advice from the United States Department of
Labor requesting cancellation of remaining flights because many of
the defendant growers had refused to employ Puerto Rican workers
who had already arrived. Of the 992 workers who arrived at the
orchards, 420 came to Virginia orchards. Of these 420 workers,
fewer than 30 had employment three weeks later, the growers having
refused to employ most of these workers and having dismissed most
of the rest within a brief time for alleged unproductivity."
Puerto Rico filed this suit on January 11, 1979, naming as
defendants numerous individuals and companies engaged in the apple
industry in Virginia. [Footnote
] Of the 2,318 job requests forwarded to Puerto Rico,
respondent alleged that 787 of these had come from the named
Virginia growers. In three counts, the complaint alleged that the
defendants had violated
Page 458 U. S. 598
the Wagner-Peyser Act, the Immigration and Nationality Act of
1952, and various federal regulations implementing those statutes,
by failing to provide employment for qualified Puerto Rican migrant
farmworkers, by subjecting those Puerto Rican workers that were
employed to working conditions more burdensome than those
established for temporary foreign workers, [Footnote 5
] and by improperly terminating employment of
Puerto Rican workers. Alleging that this discrimination against
Puerto Rican farmworkers deprived
"the Commonwealth of Puerto Rico of its right to effectively
participate in the benefits of the Federal Employment Service
System of which it is a part,"
and thereby caused irreparable injury to the Commonwealth's
efforts "to promote opportunities for profitable employment for
Puerto Rican laborers and to reduce unemployment in the
Commonwealth," respondent sought declaratory relief with respect to
the past practices of petitioners and injunctive relief requiring
petitioners to conform
Page 458 U. S. 599
to the relevant federal statutes and regulations in the
Petitioners responded with a motion to dismiss, asserting that
respondent lacked standing to bring this action. Although the
District Court held that the Commonwealth of Puerto Rico is capable
of asserting parens patriae
interests in general, it
agreed with petitioners' contention that no such action could be
maintained under the circumstances of this case. In particular, the
District Court relied upon the relatively small number of
individuals directly involved -- some 787 out of a total population
of close to 3 million -- and the slight impact upon the general
economy of Puerto Rico that the loss of this number of temporary
jobs could have.
A divided panel of the Court of Appeals for the Fourth Circuit
reversed. [Footnote 6
] 632 F.2d
365 (1980). The majority held that the District Court had focused
too narrowly on those directly involved, ignoring those that were
indirectly affected by petitioners' alleged actions. Noting the
serious dimensions of the unemployment problem in Puerto Rico and
the general condition of its economy, [Footnote 7
] the court stated that "[d]eliberate efforts to
stigmatize the labor force as inferior carry a universal sting,"
"inability of the United States government . . . to grant Puerto
Ricans equal treatment with other citizens or even with foreign
temporary workers must certainly have an effect which permeates the
entire island of Puerto Rico."
at 370. These indirect effects on the interests of
"a substantial portion of its citizenry" were sufficient, in its
view, to support a parens patriae
We granted certiorari to determine whether Puerto Rico could
maintain a parens patriae
action here, despite the small
number of individuals directly involved. 454 U.S. 1079 (1981).
Page 458 U. S. 600
means literally "parent of the country."
] The parens
action has its roots in the common law concept of the
"royal prerogative." [Footnote
] The royal prerogative included the right or responsibility
to take care of persons who
"are legally unable, on account of mental incapacity, whether it
proceed from 1st. nonage: 2. idiocy: or 3. lunacy: to take proper
care of themselves and their property. [Footnote 10
At a fairly early date, American courts recognized this common
law concept, but now in the form of a legislative prerogative:
"This prerogative of parens patriae
is inherent in the
supreme power of every State, whether that power is lodged in a
royal person or in the legislature [and] is a most beneficent
function . . . often necessary to be exercised in the interests of
humanity, and for the prevention of injury to those who cannot
Mormon Church v. United States, 136 U. S.
, 136 U. S. 57
This common law approach, however, has relatively little to do
with the concept of parens patriae
standing that has
developed in American law. That concept does not involve the
State's stepping in to represent the interests of particular
citizens who, for whatever reason, cannot represent themselves. In
fact, if nothing more than this is involved -- i.e.,
the State is only a nominal party without a real interest of its
own -- then it will not have standing under the parens
doctrine. See Pennsylvania v. New Jersey,
426 U. S. 660
(1976); Oklahoma ex rel. Johnson v. Cook, 304 U.
(1938); Oklahoma v. Atchison, T.
& S. F. R. Co.,
Page 458 U. S. 601
277 (1911). Rather, to have such standing, the State must assert
an injury to what has been characterized as a "quasi-sovereign"
interest, which is a judicial construct that does not lend itself
to a simple or exact definition. Its nature is perhaps best
understood by comparing it to other kinds of interests that a State
may pursue, and then by examining those interests that have
historically been found to fall within this category.
Two sovereign interests are easily identified: first, the
exercise of sovereign power over individuals and entities within
the relevant jurisdiction -- this involves the power to create and
enforce a legal code, both civil and criminal; second, the demand
for recognition from other sovereigns -- most frequently this
involves the maintenance and recognition of borders. The former is
regularly at issue in constitutional litigation. The latter is also
a frequent subject of litigation, particularly in this Court:
"The original jurisdiction of this Court is one of the mighty
instruments which the framers of the Constitution provided so that
adequate machinery might be available for the peaceful settlement
of disputes between States and between a State and citizens of
another State. . . . The traditional methods available to a
sovereign for the settlement of such disputes were diplomacy and
war. Suit in this Court was provided as an alternative."
Georgia v. Pennsylvania R. Co., 324 U.
, 324 U. S. 450
Not all that a State does, however, is based on its sovereign
character. Two kinds of nonsovereign interests are to be
distinguished. First, like other associations and private parties,
a State is bound to have a variety of proprietary interests. A
State may, for example, own land or participate in a business
venture. As a proprietor, it is likely to have the same interests
as other similarly situated proprietors. And like other such
proprietors, it may at times need to pursue
Page 458 U. S. 602
those interests in court. Second, a State may, for a variety of
reasons, attempt to pursue the interests of a private party, and
pursue those interests only for the sake of the real party in
interest. Interests of private parties are obviously not, in
themselves, sovereign interests, and they do not become such simply
by virtue of the State's aiding in their achievement. In such
situations, the State is no more than a nominal party.
Quasi-sovereign interests stand apart from all three of the
above: they are not sovereign interests, proprietary interests, or
private interests pursued by the State as a nominal party. They
consist of a set of interests that the State has in the wellbeing
of its populace. Formulated so broadly, the concept risks being too
vague to survive the standing requirements of Art. III: a
quasi-sovereign interest must be sufficiently concrete to create an
actual controversy between the State and the defendant. The
vagueness of this concept can only be filled in by turning to
That a parens patriae
action could rest upon the
articulation of a "quasi-sovereign" interest was first recognized
by this Court in Louisiana v. Texas, 176 U. S.
(1900). In that case, Louisiana unsuccessfully sought
to enjoin a quarantine maintained by Texas officials, which had the
effect of limiting trade between Texas and the port of New Orleans.
The Court labeled Louisiana's interest in the litigation as that of
and went on to describe that interest by
distinguishing it from the sovereign and proprietary interests of
"Inasmuch as the vindication of the freedom of interstate
commerce is not committed to the State of Louisiana, and that State
is not engaged in such commerce, the cause of action must be
regarded not as involving any infringement of the powers of the
State of Louisiana, or any special injury to her property, but as
asserting that the State is entitled to seek relief in this way
Page 458 U. S. 603
matters complained of affect her citizens at large."
at 176 U. S. 19
Louisiana was unsuccessful in that case in pursuing the commercial
interests of its residents, a line of cases followed in which
States successfully sought to represent the interests of their
citizens in enjoining public nuisances. North Dakota v.
Minnesota, 263 U. S. 365
(1923); Wyoming v. Colorado, 259 U.
(1922); New York v. New Jersey,
256 U. S. 296
(1921); Kansas v. Colorado, 206 U. S.
(1907); Georgia v. Tennessee Copper Co.,
206 U. S. 230
(1907); Kansas v. Colorado, 185 U.
(1902); Missouri v. Illinois,
180 U. S. 208
In the earliest of these, Missouri v. Illinois,
Missouri sought to enjoin the defendants from discharging sewage in
such a way as to pollute the Mississippi River in Missouri. The
Court relied upon an analogy to independent countries in order to
delineate those interests that a State could pursue in federal
court as parens patriae,
apart from its sovereign and
proprietary interests: [Footnote
"It is true that no question of boundary is involved, nor of
direct property rights belonging to the complainant State. But it
must surely be conceded that, if the health and comfort of the
inhabitants of a State are threatened,
Page 458 U. S. 604
the State is the proper party to represent and defend them. If
Missouri were an independent and sovereign State, all must admit
that she could seek a remedy by negotiation, and, that failing, by
force. Diplomatic powers and the right to make war having been
surrendered to the general government, it was to be expected that
upon the latter would be devolved the duty of providing a remedy,
and that remedy, we think, is found in the constitutional
provisions we are considering."
at 241. This analogy to an independent country was
also articulated in Georgia v. Tennessee Copper Co.,
at 206 U. S. 237
a case involving air pollution in Georgia caused by the discharge
of noxious gasses from the defendant's plant in Tennessee. Justice
Holmes, writing for the Court, described the State's interest under
these circumstances as follows:
"[T]he State has an interest independent of and behind the
titles of its citizens, in all the earth and air within its domain.
It has the last word as to whether its mountains shall be stripped
of their forests and its inhabitants shall breathe pure air. It
might have to pay individuals before it could utter that word, but
with it remains the final power. . . ."
". . . When the States, by their union, made the forcible
abatement of outside nuisances impossible to each, they did not
thereby agree to submit to whatever might be done. They did not
renounce the possibility of making reasonable demands on the ground
of their still remaining quasi
Both the Missouri case and the Georgia case involved the State's
interest in the abatement of public nuisances, instances in which
the injury to the public health and comfort was graphic and direct.
Although there are numerous examples of such parens
suits, e.g., North Dakota v. Minnesota,
(flooding); New York v. New Jersey, supra
Page 458 U. S. 605
(water pollution); Kansas v. Colorado, 185 U.
(1902) (diversion of water), parens
interests extend well beyond the prevention of such
traditional public nuisances.
In Pennsylvania v. West Virginia, 262 U.
(1923), for example, Pennsylvania was recognized
as a proper party to represent the interests of its residents in
maintaining access to natural gas produced in West Virginia:
"The private consumers in each State . . . constitute a
substantial portion of the State's population. Their health,
comfort and welfare are seriously jeopardized by the threatened
withdrawal of the gas from the interstate stream. This is a matter
of grave public concern in which the State, as representative of
the public, has an interest apart from that of the individuals
affected. It is not merely a remote or ethical interest, but one
which is immediate and recognized by law."
at 262 U. S.
The public nuisance and economic wellbeing lines of cases were
specifically brought together in Georgia v. Pennsylvania R.
Co., 324 U. S. 439
(1945), in which Georgia alleged that some 20 railroads had
conspired to fix freight rates in a manner that discriminated
against Georgia shippers in violation of the federal antitrust
"If the allegations of the bill are taken as true, the economy
of Georgia and the welfare of her citizens have seriously suffered
as the result of this alleged conspiracy. . . . [Trade barriers]
may cause a blight no less serious than the spread of noxious gas
over the land or the deposit of sewage in the streams. They may
affect the prosperity and welfare of a State as profoundly as any
diversion of waters from the rivers. . . . Georgia, as a
representative of the public, is complaining of a wrong which, if
proven, limits the opportunities of her people, shackles her
industries, retards her development, and relegates her to an
inferior economic position among her
Page 458 U. S. 606
sister States. These are matters of grave public concern in
which Georgia has an interest apart from that of particular
individuals who may be affected."
at 324 U. S.
Page 458 U. S. 607
This summary of the case law involving parens patriae
actions leads to the following conclusions. In order to maintain
such an action, the State must articulate an interest apart from
the interests of particular private parties, i.e.,
State must be more than a nominal party. The State must express a
quasi-sovereign interest. Although the articulation of such
interests is a matter for case-by-case development -- neither an
exhaustive formal definition nor a definitive list of qualifying
interests can be presented in the abstract -- certain
characteristics of such interests are so far evident. These
characteristics fall into two general categories. First, a State
has a quasi-sovereign interest in the health and wellbeing -- both
physical and economic -- of its residents in general. Second, a
State has a quasi-sovereign interest in not being discriminatorily
denied its rightful status within the federal system.
The Court has not attempted to draw any definitive limits on the
proportion of the population of the State that must be adversely
affected by the challenged behavior. Although more must be alleged
than injury to an identifiable group of individual residents, the
indirect effects of the injury must be considered as well in
determining whether the State has alleged injury to a sufficiently
substantial segment of its population. One helpful indication in
determining whether an alleged injury to the health and welfare of
its citizens suffices to give the State standing to sue as
is whether the injury is one that the
State, if it could, would likely attempt to address through its
sovereign lawmaking powers. [Footnote 14
Distinct from but related to the general wellbeing of its
residents, the State has an interest in securing observance of
Page 458 U. S. 608
the terms under which it participates in the federal system. In
the context of parens patriae
actions, this means ensuring
that the State and its residents are not excluded from the benefits
that are to flow from participation in the federal system. Thus,
the State need not wait for the Federal Government to vindicate the
State's interest in the removal of barriers to the participation by
its residents in the free flow of interstate commerce. See
Pennsylvania v. West Virginia, 262 U.
(1923). Similarly, federal statutes creating
benefits or alleviating hardships create interests that a State
will obviously wish to have accrue to its residents. See
Georgia v. Pennsylvania R. Co., 324 U.
(1945) (federal antitrust laws); Maryland v.
Louisiana, 451 U. S. 725
(1981) (Natural Gas Act). Once again, we caution that the State
must be more than a nominal party. But a State does have an
interest, independent of the benefits that might accrue to any
particular individual, in assuring that the benefits of the federal
system are not denied to its general population. We turn now to the
allegations of the complaint to determine whether they satisfy
either or both of these criteria. [Footnote 15
The complaint presents two fundamental contentions. First, it
alleges that the petitioners discriminated against Puerto Ricans in
favor of foreign laborers. Second, it alleges that Puerto Ricans
were denied the benefits of access to domestic work opportunities
that the Wagner-Peyser Act and the Immigration and Nationality Act
of 1952 were designed to secure for United States workers. We find
each of these allegations to fall within the Commonwealth's
quasi-sovereign interests and, therefore, each will support a
Page 458 U. S. 609
Petitioners contend that, at most, there were only 787 job
opportunities at stake in Virginia, and that this number of
temporary jobs could not have a substantial direct or indirect
effect on the Puerto Rican economy. We believe that this is too
narrow a view of the interests at stake here. Just as we have long
recognized that a State's interests in the health and wellbeing of
its residents extend beyond mere physical interests to economic and
commercial interests, we recognize a similar state interest in
securing residents from the harmful effects of discrimination. This
Court has had too much experience with the political, social, and
moral damage of discrimination not to recognize that a State has a
substantial interest in assuring its residents that it will act to
protect them from these evils. This interest is peculiarly strong
in the case of Puerto Rico simply because of the unfortunate fact
that invidious discrimination frequently occurs along ethnic lines.
Puerto Rico's situation differs somewhat from the States in this
regard -- not in theory, but in fact -- simply because this country
has, for the most part, been spared the evil of invidious
discrimination based on state lines. Were this to come to pass,
however, we have no doubt that a State could seek, in the federal
courts, to protect its residents from such discrimination to the
extent that it violates federal law. Puerto Rico claims that it
faces this problem now. Regardless of the possibly limited effect
of the alleged financial loss at issue here, we agree with the
Court of Appeals that "[d]eliberate efforts to stigmatize the labor
force as inferior carry a universal sting." 632 F.2d at 370.
Alternatively, we find that Puerto Rico does have "parens
" standing to pursue the interests of its residents in
the Commonwealth's full and equal participation in the federal
employment service scheme established pursuant to the Wagner-Peyser
Act and the Immigration and Nationality Act of 1952. Unemployment
among Puerto Rican residents is surely a legitimate object of the
Commonwealth's concern. Just as it may address that problem through
its own legislation, it may also seek to assure its residents that
Page 458 U. S. 610
have the full benefit of federal laws designed to address this
problem. The Commonwealth's position in this respect is not
distinguishable from that of Georgia when it sought the protection
of the federal antitrust laws in order to eliminate freight rates
that discriminated against Georgia shippers, Georgia v.
Pennsylvania R. Co., supra,
or from that of Maryland when it
sought to secure the benefits of the Natural Gas Act for its
residents, Maryland v. Louisiana, supra.
Indeed, the fact
that the Commonwealth participates directly in the operation of the
federal employment scheme makes even more compelling its parens
interest in assuring that the scheme operates to the
full benefit of its residents. [Footnote 16
] For these reasons, the judgment of the Court
of Appeals is
JUSTICE POWELL took no part in the decision of this case.
As used in the Act, the word "State" includes Puerto Rico. 29
U.S.C. § 49b(b). Puerto Rico's Department of Labor and Human
Resources has been approved by the Secretary of Labor and
participates in the federal-state system established by the
"Either a certification from the Secretary of Labor or his
designated representative stating that qualified persons in the
United States are not available and that the employment of the
beneficiary will not adversely affect the wages and working
conditions of workers in the United States similarly employed, or a
notice that such a certification cannot be made, shall be attached
to every nonimmigrant visa petition to accord an alien a
classification under section 101(a)(15)(H)(ii)."
8 CFR 214.2(h)(3)(i) (1982).
There is a further requirement that the employer continue to
provide an opportunity for employment to any qualified United
States worker who applies for a position from the time the foreign
workers depart for the employer's place of employment until the
time that 50 percent of the period of the work contract has
elapsed. 20 CFR § 655.203(e) (1981).
The complaint named 51 defendants: 32 apple growers and 19
officers, partners or employees of the apple growers.
The theory of the complaint was that the apple growers were
discriminating against the Puerto Ricans in favor of Jamaican
workers. In August, 1978, apple growers in several States,
including Virginia, filed suit in Federal District Court seeking an
injunction against the United States Secretary of Labor, the
Commissioner of the Immigration and Naturalization Service, and
their subordinates, to permit the recruitment and employment of
foreign workers. Puerto Rico was allowed to intervene in this suit
to represent the interests of its residents in these work
opportunities. The growers complained that the federal employment
service had not produced sufficient laborers to assure that the
harvest, which was about to begin, could be successfully
accomplished with sufficient speed. The District Court issued a
preliminary injunction ordering that a certain number of foreign
workers be allowed to enter this country to pick apples.
Frederick County Fruit Growers Assn., Inc. v. Marshall,
No. 78-0086(H) (WD Va., Aug. 31, 1978). The Jamaicans secured entry
under this order. Prior to issuing this injunction, however, the
court was assured by the apple growers that they recognized their
obligation to give priority to Puerto Rican workers,
notwithstanding the court order. Puerto Rico's complaint was
founded on the charge that the apple growers failed to meet this
commitment and, thus, failed to meet their obligations under
The dissenting judge agreed with the analysis of the District
In September, 1978, 18.5% of the adults in the Puerto Rican
labor force were unemployed. Rural unemployment stood at 23%.
' literally 'parent of the country,'
refers traditionally to role of state as sovereign and guardian of
persons under legal disability."
Black's Law Dictionary 1003 (5th ed.1979).
See Hawaii v. Standard Oil Co., 405 U.
, 405 U. S. 257
(1972); G. Curtis, The Checkered Career of Parens Patriae,
25 DePaul L.Rev. 895, 896 (1976); Black's, supra.
J Chitty, Prerogatives of the Crown 155 (1820), quoted in
Justice Harlan, in a concurring opinion, specifically rejected
the idea that Louisiana had standing to pursue more than its
sovereign and proprietary interests:
"I am of opinion that the State of Louisiana, in its sovereign
or corporate capacity, cannot bring any action in this court on
account of the matters set forth in its bill. The case involves no
property interest of that State. Nor is Louisiana charged with any
duty, nor has it any power, to regulate interstate commerce."
176 U.S. at 176 U. S. 24
Admittedly, the discussion here and in the other cases discussed
below focused on the parens patriae
question in the
context of a suit brought in the original jurisdiction of this
Court. There may indeed be special considerations that call for a
limited exercise of our jurisdiction in such instances; these
considerations may not apply to a similar suit brought in federal
The Court also said, 324 U.S. at 324 U. S. 450
"It seems to us clear that, under the authority of these cases,
Georgia may maintain this suit as parens patriae
behalf of her citizens, though here, as in Georgia v. Tennessee
[206 U.S. at] 206 U. S.
, we treat the injury to the State as proprietor
merely as a 'makeweight.' The original jurisdiction of this Court
is one of the mighty instruments which the framers of the
Constitution provided so that adequate machinery might be available
for the peaceful settlement of disputes between States and between
a State and citizens of another State. See Missouri v.
[180 U.S. at] 180 U. S.
-224; Virginia v. West Virginia,
246 U. S.
, 246 U. S. 599
barriers, recriminations, intense commercial rivalries had plagued
the colonies. The traditional methods available to a sovereign for
the settlement of such disputes were diplomacy and war. Suit in
this Court was provided as an alternative. Missouri v.
p. 180 U. S. 241
v. Tennessee Copper Co., supra,
p. 206 U. S.
"* * * *"
"Oklahoma v. Atchison,
& S. F. R. Co., [220 U.S.
(1911)], is not opposed to this view. In that case, the
defendant railroad company had obtained a grant from Congress to
locate and maintain a railway line through the Indian Territory out
of which the State of Oklahoma was later formed. The federal act
provided certain maximum transportation rates which the company
might charge. Oklahoma sued to cancel the grant, to have the
property granted decreed to be in the State of Oklahoma as
cestui que trust,
to enjoin the defendant from operating a
railroad in the State, and to enjoin pendente lite
exaction of greater rates than the maximum rates specified. The
Court construed the Act of Congress as subjecting the rates to
federal control until the territory became a part of a State, at
which time the rates became subject to state control. The Court
held that our original jurisdiction could not be invoked by a State
merely because its citizens were injured. We adhere to that
decision. It does not control the present one. This is no attempt
to utilize our original jurisdiction in substitution for the
established methods of enforcing local law. This is not a suit in
which a State is a mere nominal plaintiff, individual shippers
being the real complainants. This is a suit in which Georgia
asserts claims arising out of federal laws and the gravamen of
which runs far beyond the claim of damage to individual
Obviously, a State might make use of "private bills" in order to
use its legislative power to aid particular individuals. If the
analogy spoken of above is to this form of legislative action, then
the State remains merely a nominal party from the perspective of a
federal court; it has failed to articulate any general interest,
apart from that of the individual involved.
Although we have spoken throughout of a "State's" standing as
we agree with the lower courts and the
parties that the Commonwealth of Puerto Rico is similarly situated
to a State in this respect: it has a claim to represent its
quasi-sovereign interests in federal court at least as strong as
that of any State.
A State does not have standing as parens patriae
bring an action against the Federal Government. Massachusetts
v. Mellon, 262 U. S. 447
262 U. S.
-486 (1923) ("While the State, under some
circumstances, may sue in that capacity for the protection of its
citizens (Missouri v. Illinois, 180 U.
, 180 U. S.
), it is no part of its duty or power to enforce
their rights in respect of their relations with the Federal
Government. In that field, it is the United States, and not the
State, which represents them as parens patriae
however, the Commonwealth is seeking to secure the federally
created interests of its residents against private defendants.
Indeed, the Secretary of Labor has represented that he has no
objection to Puerto Rico's standing as parens patriae
under these circumstances. See
Brief for the Secretary of
Labor as Amicus Curiae
in Puerto Rico v.
No. 724, Docket 79-7777 (CA2).
JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN,
and JUSTICE STEVENS join, concurring.
As the Court notes, ante
at 458 U. S. 603
n. 12, the question whether a State can bring a parens
action within the original jurisdiction of this Court
may well turn on considerations quite different from those
implicated where the State
Page 458 U. S. 611
seeks to press a parens patriae
claim in the district
courts. The Framers, in establishing original jurisdiction in this
Court for suits "in which a State shall be a Party," Art. III, § 2,
cl. 2, and Congress, in implementing the grant of original
jurisdiction with respect to suits between States, 28 U.S.C. §
1251(a) (1976 ed., Supp. IV), may well have conceived of a somewhat
narrower category of cases as presenting issues appropriate for
initial determination in this Court than the full range of cases to
which a State may have an interest cognizable by a federal court.
The institutional limits on the Court's ability to accommodate such
suits accentuates the need for more restrictive access to the
original docket. In addition, because the judicial power of the
United States does not extend to suits "commenced or prosecuted
against one of the United States by Citizens of another State,"
U.S.Const., Amdt. 11, where one State brings a suit parens
against another State, a more circumspect inquiry may
be required in order to ensure that the provisions of the Eleventh
Amendment are not being too easily circumvented by the device of
the State's bringing suit on behalf of some private party. Of
course, none of the concerns that might counsel for a restrictive
approach to the question of parens patriae
present in this case.
In cases such as the present one, I can discern no basis either
in the Constitution or in policy for denying a State the
opportunity to vindicate the federal rights of its citizens. At the
very least, the prerogative of a State to bring suits in federal
court should be commensurate with the ability of private
organizations. A private organization may bring suit to vindicate
its own concrete interest in performing those activities for which
it was formed. E.g., Havens Realty Corp. v. Coleman,
455 U. S. 363
455 U. S.
-379 (1982); [Footnote
Page 458 U. S. 612
v. Metropolitan Housing Dev. Corp., 458
U. S. 252
, 458 U. S. 263
(1977); NAACP v. Button, 371 U. S. 415
371 U. S. 428
(1963). See also Gladstone, Realtors v. Village of
Bellwood, 441 U. S. 91
441 U. S.
-111 (1979) (standing of municipality premised on
diminished tax base and other "harms flowing from the realities of
a racially segregated community"). Cf. Sierra Club v.
Morton, 405 U. S. 727
405 U. S. 739
(1972). [Footnote 2/2
] There is no
doubt that Puerto Rico's interest in this litigation compares
favorably to interests of the private organizations, and
municipality, in the cases cited above.
More significantly, a State is no ordinary litigant. As a
sovereign entity, a State is entitled to assess its needs, and
decide which concerns of its citizens warrant its protection and
intervention. I know of nothing -- except the Constitution or
overriding federal law -- that might lead a federal court to
superimpose its judgment for that of a State with respect to the
substantiality or legitimacy of a State's assertion of sovereign
With these considerations in mind, I join the opinion of the
Indeed, in Havens,
we held that interference with
HOME's "ability to provide counseling and referral services," 455
U.S. at 455 U. S. 379
provided it with standing to vindicate claims under the Fair
Housing Act of 1968. In this case, the alleged violations of the
Wagner-Peyser Act, 29 U.S.C. § 49 et seq.,
interfere with Puerto Rico's ability to perform the job referral
service that it has undertaken as part of its sovereign
responsibility to its citizens.
A private organization may also maintain a federal court action
on behalf of its members. E.g., NAACP v. Button,
371 U. S. 415
371 U. S. 428
(1963); National Motor Freight Assn. v. United States,
372 U. S. 246
(1963) (per curiam). See Hunt v. Washington State Apple
Advertising Comm'n, 432 U. S. 333
432 U. S.