Case 1:19-cv-01720-LJV Document 31 Filed 07/23/20 Page 1 of 22
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`19-CV-1720
`DECISION & ORDER
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
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`NEW YORK STATE VEGETABLE
`GROWERS ASSOCIATION, INC., and
`NORTHEAST DAIRY PRODUCERS
`ASSOCIATION, INC.,
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`Plaintiffs,
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`
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`v.
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`GOVERNOR ANDREW CUOMO, in his
`official capacity as Governor of New York,
`LETITIA JAMES, in her official capacity
`as Attorney General of New York, and
`ROBERTA REARDON, in her official
`capacity as Commissioner of the New
`York Department of Labor,
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`Defendants.
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`
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`On December 30, 2019, the plaintiffs, the New York State Vegetable Growers
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`Association, Inc., and the Northeast Dairy Producers Association, Inc., filed a complaint
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`in this Court. Docket Item 1. They alleged that the Farm Laborers Fair Labor Practices
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`Act, 2019 N.Y. Sess. Laws ch. 105, violated the Due Process Clause of the Fourteenth
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`Amendment to the United States Constitution and also was preempted by the National
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`Labor Relations Act, 29 U.S.C. §§ 151-169. Id.
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`That same day, the plaintiffs moved for a temporary restraining order (TRO) and
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`preliminary injunction, Docket Item 2, and this Court heard argument from both sides,
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`Docket Item 6. The Court partially granted the TRO, Docket Item 7, which has
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`remained in place under an agreement between the parties, see Docket Item 11 and 13.
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`After Governor Andrew Cuomo enacted a bill amending the Farm Laborers Fair Labor
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`Case 1:19-cv-01720-LJV Document 31 Filed 07/23/20 Page 2 of 22
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`Practices Act in April 2020, the plaintiffs amended their complaint in May 2020. See
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`Docket Item 16. The defendants responded in opposition to the renewed motion for a
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`preliminary injunction, Docket Item 17; the plaintiffs replied; Docket Item 20; and the
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`defendants sur-replied, Docket Item 25. This Court heard argument from both sides on
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`July 10, 2020. See Docket Item 30.
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`For the reasons that follow, the Court DENIES the plaintiffs’ motion for a
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`preliminary injunction.
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`BACKGROUND
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`I. THE FARM LABORERS FAIR LABOR PRACTICES ACT
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`On July 17, 2019, the New York State Legislature enacted the Farm Laborers
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`Fair Labor Practices Act (“FLFLPA”) to extend wage, hour, and labor-relations
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`protections to agricultural workers. See 2019 N.Y. Sess. Laws ch. 105. On April 3,
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`2020, the Legislature amended the FLFLPA. 2020 N.Y. Sess. Laws ch. 58 (S. 7508-B).
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`As amended, the FLFLPA affords certain labor protections to “farm laborers.” A
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`“farm laborer” is “any individual engaged or permitted by an employer to work on a
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`farm,” except “[m]embers of an agricultural employer's immediate family who are related
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`to the third degree of consanguinity or affinity . . . [,] work on [the] farm out of familial
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`obligations[,] and are not paid wages, or other compensation[,] based on their hours or
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`days of work.” Id. Part II, §§ 1, 2 (codified at N.Y. Lab. Law §§ 2(18), 701(3)(c) (2020)).1
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`1 The FLFLPA originally provided that “’[f]arm laborers’ shall mean any individual
`engaged or permitted by an employer to work on a farm, except the parent, spouse,
`child, or other member of the employer's immediate family.” 2019 N.Y. Sess. Laws ch.
`105, § 3 (emphasis added).
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`2
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`The FLFLPA extends wage and hour protections to farm laborers. Employers
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`must provide farm laborers “at least twenty-four consecutive hours of rest in each and
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`every calendar week” and cannot require them “to work more than sixty hours in any
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`calendar week” unless they are compensated at an overtime rate of “at least one and
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`one-half times the laborer’s regular rate of pay.” 2019 N.Y. Sess. Laws ch. 105, §§ 4, 6
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`(codified at N.Y. Lab. Law § 161(1) and N.Y. Labor Laws § 163-a). The day-of-rest
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`requirement does not apply to the “[f]oreman in charge.” N.Y. Lab. Law § 161(2)(a). To
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`ensure compliance with these provisions, employers must sign written work agreements
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`specifying the terms and conditions of farm laborers’ employment. See N.Y. Lab. Law
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`§§ 195, 671(7), 673-a; 12 NYCRR § 190-6.1. The Department of Labor provides a
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`standard form, “LS 309,” for this purpose. See N.Y. Dep’t of Labor, Div. of Lab.
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`Standards, Pay Notice and Acknowledgement for Farm Workers (June 2020),
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`https://labor.ny.gov/formsdocs/wp/LS309.pdf.
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`The FLFLPA also extends labor-relations protections under the State
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`Employment Relations Act to farm laborers. “Employees,” including farm laborers,
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`“shall have the right of self-organization[;] to form, join, or assist labor organizations[;] to
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`bargain collectively through representatives of their own choosing[;] and to engage in
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`concerted activities . . . .” N.Y. Lab. Law § 703. These organizing protections are,
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`however, subject to certain limitations. For example, “[n]otwithstanding any other
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`provision of law, for farm laborers the term ‘concerted activities’ shall not include a right
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`to strike or other concerted stoppage of work or slowdown.” 2019 N.Y. Sess. Laws ch.
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`105, § 18 (codified at N.Y. Lab. Law § 703); see also 2019 N.Y. Sess. Laws ch. 105, §
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`19 (codified at N.Y. Lab. Law § 704-b(1)) (“It shall be an unfair labor practice for a farm
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`Case 1:19-cv-01720-LJV Document 31 Filed 07/23/20 Page 4 of 22
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`laborer or an employee organization representing farm laborers to strike any agricultural
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`employer.”). The rights of “supervisory employees” similarly are circumscribed. If “a
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`majority” of employees choose to engage in “collective bargaining in respect to rates of
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`pay, wages, hours of employment, or other conditions of employment,” the Public
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`Employment Relations Board (the “PERB”) “shall determine whether any supervisory
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`employee shall be excluded from any negotiating unit that includes rank-and-file farm
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`laborers; provided, however, that nothing in this subdivision shall be construed to limit or
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`prohibit any supervisory employee from organizing a separate negotiating unit.” 2020
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`N.Y. Sess. Laws ch. 58, § 3 (codified at N.Y. Lab. Law § 705(1)(b)).
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`Employers who violate certain provisions of the FLFLPA face criminal and civil
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`penalties. Under New York Labor Law § 680(2), “[a]ny employer . . . who pays or
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`agrees to pay to any employee less than the wage applicable under this article shall be
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`guilty of a misdemeanor . . . punish[able] by a fine of [fifty to five hundred dollars,] by
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`imprisonment of [ten to ninety] days[,] or by both such fine and imprisonment.”
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`Similarly, under New York Labor Law § 680(3), “[a]ny employer . . . who fails to keep the
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`records required under this article”—including LS 309—“shall be guilty of a
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`misdemeanor . . . punish[able] by a fine of [fifty dollars to five hundred dollars].”
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`Under New York Labor Law § 681, an employee “paid . . . less than the wage to
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`which he is entitled . . . may recover in a civil action the amount of any such
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`underpayments, together with costs and . . . reasonable attorney's fees,” as well as
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`liquidated damages of twenty-five percent “if such underpayment was willful.” The
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`PERB also may investigate and “take . . . affirmative or other action,” including the
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`award of backpay and the reinstatement of wrongfully terminated employees, to rectify
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`Case 1:19-cv-01720-LJV Document 31 Filed 07/23/20 Page 5 of 22
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`“unfair labor practice[s].” 29 U.S.C. § 706(3). Sections 704(1)-(3) specify certain such
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`“unfair labor practices”:
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`It shall be an unfair labor practice for an employer . . . [t]o spy upon or keep
`under surveillance, whether directly or through agents or any other person,
`any activities of employees or their representatives . . . [or] dominate or
`interfere with the formation, existence, or administration of any [union] . . .
`by participating or assisting in, supervising, controlling or dominating (1) the
`initiation or creation of any such [union], or (2) the meetings, management,
`operation, elections, formulation or amendment of constitution, rules or
`policies, of any such [union].
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`N.Y. Lab. Law § 704(1)-(3). The FLFLPA also added language specific to farm
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`laborers: “It shall be an unfair labor practice for an agricultural employer to . . .
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`discourage union organization or to discourage an employee from participating in a
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`union organizing drive, engaging in protected concerted activity, or otherwise exercising
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`the rights guaranteed under this article.” 2019 N.Y. Sess. Laws ch. 105, § 19 (codified
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`at N.Y. Lab. Law § 704-b(2)(c)).
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`II.
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`NATIONAL LABOR RELATIONS ACT
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`In addition to the state labor protections discussed above, protections also exist
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`under federal law. The National Labor Relations Act (“NLRA”) guarantees the rights of
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`“employees” to bargain collectively over wages, hours, and other terms and conditions
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`of employment. See 29 U.S.C. § 157. But “agricultural laborers” are not “employees.”
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`Id. § 152(3). Neither are “supervisors.” Id. §§ 152(3), (11); see also 29 U.S.C. § 164(a)
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`(“Nothing herein shall prohibit any individual employed as a supervisor from becoming
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`or remaining a member of a labor organization, but no employer subject to this
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`subchapter shall be compelled to deem individuals defined herein as supervisors as
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`employees for the purpose of any law, either national or local, relating to collective
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`bargaining.”).
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`DISCUSSION
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`“A preliminary injunction is an extraordinary remedy never awarded as of right.”
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`Monserrate v. N.Y. St. Senate, 599 F.3d 148, 154 (2d Cir. 2010) (quoting Winter v. Nat.
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`Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). It “is an equitable remedy and an act of
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`discretion by the court.” Am. Civ. Liberties Union v. Clapper, 804 F.3d 617, 622 (2d Cir.
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`2015).
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`“A plaintiff seeking a preliminary injunction must establish that he is likely to
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`succeed on the merits, that he is likely to suffer irreparable harm in the absence of
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`preliminary relief, that the balance of equities tips in his favor, and that an injunction is in
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`the public interest.” Trump v. Deutsche Bank AG, 943 F.3d 627, 640 (2d Cir.), cert.
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`granted, 140 S. Ct. 660 (2019) (quoting Winter, 555 U.S. at 20).2 Moreover, the Second
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`Circuit has instructed that a mandatory injunction—that is, an injunction commanding a
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`positive act, as opposed to one that merely maintains the status quo—“should issue
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`‘only upon a clear showing that the moving party is entitled to the relief requested, or
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`where extreme or very serious damage will result from a denial of preliminary
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`relief.’” Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir.
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`1995) (quoting Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985)).
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`2 Although the Second Circuit also recognizes a “less rigorous standard” of
`“sufficiently serious questions going to the merits to make them a fair ground for
`litigation plus a balance of hardships tipping decidedly in their favor,” that standard
`“cannot be used”—as the plaintiffs seeks to do here—“to preliminarily enjoin
`governmental action.” Deutsche Bank, 943 F.3d at 637 (citations omitted); see also
`Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995) (“As long as the action to be
`enjoined is taken pursuant to a statutory or regulatory scheme, even government action
`with respect to one litigant requires application of the ‘likelihood of success’ standard.”).
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`I.
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`LIKELIHOOD OF SUCCESS ON THE MERITS
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`The plaintiffs argue that the FLFLPA is unconstitutional in several respects. First,
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`they argue that it includes inherently irreconcilable provisions—what the plaintiffs dub
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`“untenable dilemmas”—and therefore facially violates the employers’ due process rights
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`under the Fourteenth Amendment. More specifically, they allege that the FLFLPA
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`inconsistently requires employers both to allow supervisors and family members to
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`bargain collectively and to prevent those same employees from interfering with rank-
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`and-file employees’ rights to bargain collectively. Docket Item 16 at 24-26. Similarly,
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`they argue, the provisions prohibiting strikes are incompatible with the provision
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`permitting them. Id. The plaintiffs also claim that the provision permitting supervisors to
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`bargain collectively conflicts with the NLRA and therefore is preempted under the
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`Supremacy Clause. Docket Item 16 at 26-27.
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`The defendants respond that the plaintiffs err procedurally and substantively.
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`Procedurally, the defendants argue, the plaintiffs are unlikely to show that they have
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`standing to sue because they have not demonstrated that a live “case or controversy”
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`exists. Docket Item 17 at 16-18. Substantively, the defendants argue, the plaintiffs are
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`not likely to show that a fair reading of the FLFLPA renders it either internally
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`inconsistent, so as to violate the Fourteenth Amendment, or externally inconsistent with
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`the NLRA, so as to violate the Supremacy Clause. Id. at 19-28.
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`A.
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`Vagueness and the Fourteenth Amendment
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`“Among the most fundamental protections of due process is the principle that
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`‘[n]o one may be required at peril of life, liberty or property to speculate as to the
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`meaning of . . . statutes. All are entitled to be informed as to what the State commands
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`or forbids.’” Cunney v. Bd. of Trustees of Vill. of Grand View, N.Y., 660 F.3d 612, 620
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`(2d Cir. 2011) (quoting Cramp v. Bd. of Pub. Instruction, 368 U.S. 278, 287 (1961)).
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`“Animating this . . . vagueness ground is the constitutional principle that individuals
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`should receive fair notice or warning when the state has prohibited specific behavior or
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`acts.” Id. at 621 (quoting Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007). A
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`law therefore violates due process “if it fails to provide people of ordinary intelligence a
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`reasonable opportunity to understand what conduct it prohibits.” Id. (quoting Hill v.
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`Colorado, 530 U.S. 703, 732 (2000)); see also Thibodeau, 486 F.3d at 66 (explaining
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`that the vagueness doctrine “does not require ‘meticulous specificity’ from every statute
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`. . . as language is necessarily marked by a degree of imprecision” (citations omitted)).
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`“[S]peculation about possible vagueness in hypothetical situations not before the
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`Court will not support a facial attack on a statute when it is surely valid ‘in the vast
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`majority of its intended applications.’” Hill, 530 U.S. at 733 (quoting United States v.
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`Raines, 362 U.S. 17, 23 (1960)). Stated differently, because “[t]he claim in a facial
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`challenge is that a statute is so fatally indefinite that it cannot constitutionally be applied
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`to anyone,” a statute is fatally vague only if it “proscribe[s] no comprehensible course of
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`conduct at all.” Copeland v. Vance, 893 F.3d 101, 110, 114 (2d Cir. 2018) (quoting
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`United States v. Powell, 423 U.S. 87, 92 (1975)), cert. denied, 139 S. Ct. 2714 (2019).
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`1.
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`Labor-Relations Provision
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`The defendants first argue that the plaintiffs are unlikely to point to a justiciable
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`controversy ripe for review with respect to the contested labor-relations provisions. See
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`Docket Item 17 at 16-18. The plaintiffs respond that the FLFLPA creates several
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`“untenable dilemmas” for farm employers and that employers immediately must choose
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`among opposing and impossibly inconsistent courses of action. Docket Item 16 at 26.
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`Before delving into the merits of this argument, it is useful to delineate which of the
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`many provisions referenced in the plaintiffs’ papers allegedly violate the Constitution,
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`and—just as important—which do not.
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`The FLFLPA amended the New York Labor Laws in several respects, roughly
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`classified as changes to the wage-and-hour provisions, N.Y. Lab. Law §§ 161, 163-a,
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`and to the labor-relations provisions, id. §§ 703, 704-b, 705. Although the plaintiffs refer
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`to the wage-and-hour provisions frequently in their complaint, in the end they advance
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`no argument that these portions of the FLFLPA violate the Constitution. Instead, the
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`plaintiffs argue (1) that extending labor-relations protections to supervisory and family-
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`member farm laborers “contradict[s] another provision of the [FLFLPA] that requires
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`employers to instruct their supervisory employees not to engage in certain activities that
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`would be unduly influential . . . to those workers’ rights to engage in concerted activity,”
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`Docket Item 16 at 25 (citing 2019 N.Y. Sess. Laws ch. 105, § 19 (codified at N.Y. Lab.
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`Law § 704-b(2)(c))); (2) that section 703, which prohibits farm laborers from striking,
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`contradicts section 713, which expressly disclaims that any provision of that article of
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`the labor law prohibits striking, id. at 26; and (3) that extending labor-relations
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`protections to supervisory farm laborers contradicts “section 14(a) of the NLRA[, 29
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`U.S.C. §§ 152(3), (11), which] provides that employers shall not be compelled to treat
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`supervisors as employees in relation to any law relating to collective bargaining,” id. at
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`27.
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`Notwithstanding their failure to advance any argument challenging the validity of
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`the wage-and-hour provisions, the plaintiffs allege that they will be injured by criminal
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`and civil enforcement of those provisions—not the labor-relations provisions. See
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`Docket Item 16 at 21-22 (citing N.Y. Labor Laws § 680(2) (criminalizing wage theft); id.
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`§ 680(3) (criminalizing improper record keeping); id. § 681 (creating private right of
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`action to recover wages)). But the plaintiffs do not explain that concern in any detail,
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`and the Court is hard pressed to understand it. Indeed, the Court is aware of only one
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`enforcement mechanism that relates to the FLFLPA’s labor-relations provisions:
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`section 706(3), which authorizes the PERB to “take . . . affirmative or other action” to
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`rectify unfair labor practices, including an employer’s discouraging collective action.
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`And the plaintiffs do not reference this provision anywhere in their complaint.
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`The first question therefore is whether, reading the plaintiff’s complaint
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`generously to allege injury under section 706, the PERB’s authority to enforce the
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`FLFLPA’s labor-relations provisions—and those provisions alone—likely presents a
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`judiciable question.
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`“To be justiciable, a cause of action must be ripe—it must present ‘a real,
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`substantial controversy, not a mere hypothetical question.’” Nat'l Org. for Marriage, Inc.
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`v. Walsh, 714 F.3d 682, 687 (2d Cir. 2013) (quoting AMSAT Cable Ltd. v. Cablevision of
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`Conn., 6 F.3d 867, 872 (2d Cir. 1993)). The ripeness doctrine “implicates two distinct
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`conceptual jurisdictional criteria”: (i) “the existence of jurisdiction” under Article III’s case
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`or controversy requirement and (ii) “judicial prudence.” Id. (citing Simmonds v. INS, 326
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`F.3d 351, 356-57 (2d Cir. 2003)).
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`Constitutional ripeness “prevents courts from declaring the meaning of the law in
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`a vacuum and from constructing generalized legal rules unless the resolution of an
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`actual dispute requires it.” Id. at 688. The Second Circuit has explained that, “[o]ften,
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`the best way to think of constitutional ripeness is as a specific application of the actual
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`injury aspect of Article III standing.” Id. “[T]o say a plaintiff’s claim is constitutionally
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`unripe is to say the plaintiff’s claimed injury, if any, is not ‘actual or imminent,’ but
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`instead ‘conjectural or hypothetical.’” Id. (footnote omitted) (quoting Lujan v. Defenders
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`of Wildlife, 504 U.S. 555, 560 (1992)).
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`Prudential ripeness “means that the case will be better decided later and that the
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`parties will not have constitutional rights undermined by the delay.” Id. (alteration in
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`original) (quoting Simmonds, 326 F.3d at 357). “To determine whether to abstain from a
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`case on prudential ripeness grounds,” courts “proceed with a two-step inquiry, . . .
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`evaluat[ing] both the fitness of the issues for judicial decision and the hardship to the
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`parties of withholding court consideration.” Id. at 691 (footnote omitted) (quoting
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`Grandeau, 528 F.3d 122,131-32 (2d Cir. 2008)). “The ‘fitness' analysis is concerned
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`with whether the issues sought to be adjudicated are contingent on future events or may
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`never occur.” Id. (quoting Grandeu, 528 F.3d at 132). The hardship analysis “ask[s]
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`whether the challenged action creates a direct and immediate dilemma for the
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`parties.” Id. (quoting Grandeu, 528 F.3d at 134). “A plaintiff must show either
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`prosecution pursuant to the challenged provision or that a sufficiently real and
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`immediate threat of prosecution exists.” Marchi v. Bd. of Coop. Educ. Svcs. of Albany,
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`173 F.3d 469, 478-79 (2d Cir. 1999) (citations omitted).
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`In Marchi, for example, the court found no justiciable controversy in a suit
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`challenging an agency’s directive regulating school teachers’ off-campus speech. The
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`court explained that it could “imagine a variety of . . . hypothetical application[s] of the
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`directive,” some constitutional and others not. Id. at 478. Given this ambiguity, and
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`because the agency had not yet “threatened to apply the directive to any of [the
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`plaintiff’s] off-campus expressive activities,” a court entertaining the challenge “would be
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`forced to guess at how [the agency] might apply the directive and to pronounce on the
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`validity of numerous possible applications of the directive, all highly fact-specific and, as
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`of yet, hypothetical.” Id. “Such an open-ended and indefinite challenge,” the court
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`concluded, “[was] not well suited to judicial decision.” Id.
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`Here, the plaintiffs allege that they must choose between permitting supervisory
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`and family-member employees to bargain collectively, on the one hand, and protecting
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`their rank-and-file employees from undue influence from supervisory and family-
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`member employees, on the other. These allegations likely are insufficient to show
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`constitutional ripeness, let alone prudential ripeness. As in Marchi, this Court could
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`“imagine a variety of . . . hypothetical application[s] of the [statute],” some constitutional
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`and others not. See Id. In particular, the PERB has yet to adjudicate a concrete
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`inquiry into “whether [a] supervisory employee [should] be excluded from [a] negotiating
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`unit that includes rank-and-file farm laborers.” See 2020 N.Y. Sess. Laws ch. 58, § 3
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`(codified at N.Y. Lab. Law § 705(1)(b)). How the PERB will handle that situation
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`therefore is far from clear.
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`For example, the PERB might, through a series of individual adjudications,
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`ultimately determine that no supervisory employee may be involved in a negotiating unit
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`without running afoul of section 704’s prohibition on surveillance and interference. In
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`that case, the plaintiffs’ stated concerns never would materialize.3 The PERB
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`3 The defendants point to a similar process that would apply to family-member
`farm laborers. See Docket Item 17 at 20. Whenever employees seek to organize, the
`PERB “shall decide in each case whether, in order to insure to employees the full
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`alternatively might find, for highly fact-specific reasons, that certain supervisory
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`individuals may be involved without risking impermissible interference. The relevant
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`statutory provisions, after all, do not outright prohibit supervisory or family-member
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`employees’ involvement; rather, they prohibit employer interference “directly or through
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`agents or any other person.” N.Y. Lab. Law § 704; see also Southern Pride Catfish,
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`331 NLRB 618 (2000) (employer liable for unlawfully surveilling employees because
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`manager told first-line supervisors to keep a list of employees wearing union t-shirts and
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`that such employees would be fired). In arguing that the statute is facially
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`unconstitutional, the plaintiffs in effect argue that supervisors and family members never
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`could engage in collective bargaining units alongside rank-and-file employees without
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`violating the interference provision. Such an argument implausibly presumes that all
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`family members and supervisors are non-autonomous actors, always operating at the
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`direction of their employers.
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`In short, the plaintiffs are not likely to demonstrate that their facial challenge to
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`the statute’s labor-relations provisions is ripe. Until the PERB has an opportunity to
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`reach determinations outlined above, it likely would be, at a minimum, imprudent for the
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`Court to decide the issues presented in the plaintiffs’ motion. The Court “would be
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`forced to guess at how [the agency] might apply [section 705(1)(b)] and to pronounce
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`on the validity of numerous possible applications of the [statute], all highly fact-specific
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`benefit of their right to self-organization, to collective bargaining[,] and otherwise to
`effectuate the policies of this article, the unit appropriate for the purposes of collective
`bargaining shall be the employer unit, multiple employer unit, craft unit, plant unit, or any
`other unit.” N.Y. Lab. Law § 705(2). The PERB also “shall have power to determine
`who may participate in the election.” Id. § 705(4). So, as with supervisory employees, it
`remains to be seen whether employers will, in fact, need to choose between family-
`members’ and rank-and-file employees’ collective-bargaining rights.
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`Case 1:19-cv-01720-LJV Document 31 Filed 07/23/20 Page 14 of 22
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`and, as of yet, hypothetical.” Marchi, 173 F.3d at 478. In other words, the plaintiffs
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`likely neither present “a real or concrete dispute affecting cognizable current concerns
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`of the parties,” nor demonstrate that this Court should “becom[e] embroiled in
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`adjudications that may later turn out to be unnecessary.” See Nat'l Org. for Marriage,
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`Inc., 714 F.3d at 688 (quoting Simmonds, 326 F.3d at 357).
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`The plaintiffs’ first claim therefore likely is unripe—and the plaintiffs thus are
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`unlikely to succeed on the merits of that claim—to the extent it alleges that farm
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`employers unconstitutionally must choose between protecting the collective bargain
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`rights of their supervisory and family-members employees and protecting those same
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`rights of their rank-and-file employees. The Court nevertheless will not dismiss the
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`claim at this early point in the litigation. Cf. Durant, Nichols, Houston, Hodgson &
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`Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 63-64 (2d Cir. 2009) (“[I]t is [a federal
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`court’s] obligation to raise the matter of subject matter jurisdiction whenever it appears
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`from the pleadings or otherwise that jurisdiction is lacking.” (emphasis in original)
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`(citation omitted)); Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it
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`lacks subject-matter jurisdiction, the court must dismiss the action.”). Because the
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`Court does not grant the plaintiffs’ motion for a preliminary injunction, and because the
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`plaintiffs’ alternative ground raised in the first claim of the amended complaint—that the
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`strike provisions are internally inconsistent—likely presents, at this early stage, a live
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`case or controversy, the Court defers a decision on whether the labor-relations
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`provisions present a justiciable question.
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`Case 1:19-cv-01720-LJV Document 31 Filed 07/23/20 Page 15 of 22
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`2.
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`Strike Provisions
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`The plaintiffs also argue that section 703, which prohibits farm laborers from
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`striking, unconstitutionally contradicts section 713, which expressly disclaims that any
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`provision of that article of the Labor Law prohibits striking. Docket Item 16 at 26. More
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`specifically, the FLFLPA provides that “[n]otwithstanding any other provision of law, for
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`farm laborers the term ‘concerted activities’ shall not include a right to strike or other
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`concerted stoppage of work or slowdown.” 2019 N.Y. Sess. Laws ch. 105, § 18
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`(codified at N.Y. Lab. Law § 703). But an existing provision of the Labor Law elsewhere
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`provides that “[n]othing in this article shall be construed so as to interfere with, impede[,]
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`or diminish in any way the right of employees to strike or engage in other lawful,
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`concerted activities.” N.Y. Lab. Law § 713.
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`The plaintiffs are not likely to succeed in their claim that a person “of ordinary
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`intelligence” would not know which of these two provisions to apply. It is a “basic
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`principle of statutory construction”—indeed, of basic logic—“that a specific statute . . .
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`controls over a general provision . . . particularly when the two are interrelated and
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`closely positioned.” HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981). Although
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`section 713 purports to protect the right of all employees to strike, section 703 plainly
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`overrides that section with respect to farm laborers. The plaintiffs therefore are unlikely
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`to succeed on their claim that the various provisions of the FLFLPA regulating
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`employees’ rights to strike are unconstitutionally vague.
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`3.
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`“Familial Obligation”
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`The plaintiffs also argue, for the first time in their reply, that the FLFLPA’s
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`provision excluding certain family members from the wage-and-hour and the labor-
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`Case 1:19-cv-01720-LJV Document 31 Filed 07/23/20 Page 16 of 22
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`relations provisions are impermissibly vague in their reliance on the undefined term
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`“familial obligations.” See Docket Item 20 at 6-8. This Court will not consider new
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`arguments raised for the first time in the plaintiffs’ reply. See, e.g., Zirogiannis v.
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`Seterus, Inc., 221 F. Supp. 3d 292, 298 (E.D.N.Y. 2016) (explaining that courts will not
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`consider “[n]ew arguments first raised in reply papers in support of a motion” (quoting
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`Domino Media, Inc. v. Kranis, 9 F. Supp. 2d 374, 387 (S.D.N.Y. 1998)), aff'd, 707 F.
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`App'x 724 (2d Cir. 2017) (summary order). Cf. Knipe v. Skinner, 999 F.2d 708, 711 (2d
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`Cir. 1993) (“Arguments may not be made for the first time in a reply brief.”). Simply
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`quoting the definition of “farm laborer” in the amended complaint and noting that
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`“familial obligation[ ] is nowhere defined” is insufficient to raise the argument. See
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`Docket Item 16 at 6. The amended complaint unambiguously alleges that the FLFLPA
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`is “unconstitutional and violates the 14th Amendment because mere participation of
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`supervisors, owners[,] and family members in the collective bargaining process puts
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`farms in a position where they will be violating other provisions of the Act.” Id. at 26
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`(emphasis added); see also id. (alleging that the statute’s “contradictory terms” create
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`an “untenable dilemma”).
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`What is more, the plaintiffs chose not to amend their motion for a
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`TRO/preliminary injunction, notwithstanding their filing of an amended complaint, and
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`notwithstanding the many changes to the statute—including the addition of the term
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`“familial obligation”—since the motion originally was filed. That leaves this Court with
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`only the original motion for a TRO/preliminary injunction and the amended complaint
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`from which to glean their arguments. It would be neither efficient nor prudent for this
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`Court to read between the lines of submissions from counseled litigants—an
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`Case 1:19-cv-01720-LJV Document 31 Filed 07/23/20 Page 17 of 22
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`observation that especially is true in the context of the “extraordinary” remedy the
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`plaintiffs seek here.4 Cf. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“It is
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`not enough merely to mention a possible argument in the most skeletal way, leaving the
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`court to do counsel's work, create the ossature for the argument, and put flesh on its
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`bones”). To the extent the plaintiffs seek to raise this ground for relief, they may move
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`to amend their complaint for a second time to properly raise the argument.
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`In sum, for all the above reasons, the plaintiffs are not likely to succeed on the
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`merits of their first claim for relief, alleging that the FLFLPA violates the Fourteenth
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`Amendment.
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`4 In any event, even were the Court to consider this argument, it would not
`change the outcome. The