United States District Court, District of Columbia
A. HOWELL Chief Judge.
before the Court is a motion for reconsideration by the
plaintiffs, Hispanic Affairs Project (“HAP”), and
several individual herders, including Rodolfo Llacua, John
Doe, Rafael De La Cruz, and Alfredo Salcedo, see
generally Motion for Clarification or Reconsideration of
Order on Motions to Dismiss (“Pls.' Mot.
Reconsideration”), ECF No. 84, which the defendants,
the United States Secretary of Labor, the Department of Labor
(“DOL”), DOL's Assistant Secretary,
Employment and Training Administration, the United States
Secretary of the Department of Homeland Security, and the
Department of Homeland Security (“DHS”),
oppose, see generally Gov't Defs.' Mem.
Opp'n Pls.' Mot. Reconsideration (“Defs.'
Opp'n”), ECF No. 85. For the reasons explained
below, the plaintiffs' motion is granted.
factual background underlying this case has previously been
explained in detail, see Hispanic Affairs Project v.
Perez, 141 F.Supp.3d 60, 63-66 (D.D.C. 2015),
vacated and remanded Mendoza v. Perez, 754
F.3d 1002, 1024 (D.C. Cir. 2014); Mendoza v. Perez,
72 F.Supp.3d 168, 169-71 (D.D.C. 2014), and the
plaintiffs' pending motion challenges only one aspect of
the Court's previous Memorandum Opinion and Order
addressing the defendants' motion to dismiss, see
Hispanic Affairs Project, 2016 WL 4734350 at *13-14.
Accordingly, a full explication of the facts is unnecessary.
A brief overview of the relevant statutory scheme and the
Court's previous holding at issue in the plaintiffs'
motion for reconsideration is provided before addressing the
Immigration and Nationality Act (“INA”)
establishes a temporary work visa program for nonimmigrant
aliens “having a residence in a foreign country which
he has no intention of abandoning who is coming temporarily
to the United States to perform agricultural labor or
services.” 8 U.S.C. § 1101(a)(15)(H)(ii)(a). Under
the INA, the Secretary of Labor may certify, or approve,
temporary work visas, called H-2A visas, when, inter
alia, (1) “there are not sufficient workers who
are able, willing and qualified, and who will be available at
the time and place needed, to perform the labor or services
involved in the petition, ” and (2) “the
employment of the alien in such labor or services will not
adversely affect the wages and working conditions of workers
in the United States similarly employed.” Id.
§ 1188(a)(1)(A). Upon review of DOL's findings, DHS
issues the visas. Id. § 1184(c)(1).
satisfy the statutory mandate that H-2A workers not
“adversely affect the wages and working
conditions” of domestic workers, DOL has adopted
regulations setting minimum wages and working conditions that
“employers must offer workers.” Mendoza,
754 F.3d at 1008. In 2015, after notice and comment, DOL
adopted a rule that sets forth the method for calculating the
prevailing wage for herders in each state. See
Temporary Agricultural Employment of H-2A Foreign Workers in
the Herding or Production of Livestock on the Range in the
United States(“2015 Rule”), 80 Fed. Reg. 62, 958
(Oct. 16, 2015) (codified at 20 C.F.R. § 655). This case
presents, inter alia, a challenge to the 2015 Rule.
Court previously held, in addressing the government
defendants' motion to dismiss the plaintiffs' claims,
that HAP lacks standing to challenge the 2015 Rule because
none of its members falls within the zone of interests of
§ 1188(a)(1), which, as noted, is the provision of the
INA under which the 2015 Rule was promulgated. See
Hispanic Affairs Project, 2016 WL 4734350 at *14. In so
holding, the Court relied on the D.C. Circuit's opinion
in Mendoza v. Perez, 754 F.3d 1002, 1017 (D.C. Cir.
2014), which explained that “the clear intent” of
§ 1188(a)(1) “is to protect American workers from
the deleterious effects the employment of foreign labor might
have on domestic wages and working condition.”
Accordingly, this Court held that HAP's members,
“who aver only that they are ‘authorized to work
in the United States, ' not that they are American
citizens” are not “part of the class of American
workers subject to the protection of the INA provision under
which the 2015 Rule was promulgated.” Hispanic
Affairs Project, 2016 WL 4734350 at *14. The plaintiffs
now ask the Court to reconsider this conclusion. They clarify
for the first time in this litigation, by supplemental
declarations, that at least two of their members are lawful
permanent residents of the United States. See
Supplemental Declarations of Magdaleno Diaz (“Diaz
Decl.”) and Fidel Medina (“Medina Decl.”),
ECF Nos. 84-1, 84-2.
Federal Rule of Civil Procedure 54(b), “any order or
other decision . . . that adjudicates fewer than all the
claims . . . may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties'
rights and liabilities.” In contrast to a motion for
reconsideration pursuant to Rule 59(e), which governs
post-judgment motions for reconsideration, “Rule
54(b)'s approach to the interlocutory presentation of new
arguments as the case evolves can be more flexible,
reflecting the ‘inherent power of the rendering
district court to afford such relief from interlocutory
judgments as justice requires.'” Cobell v.
Jewell, 802 F.3d 12, 25 (D.C. Cir. 2015) (quoting
Greene v. Union Mutual Life. Ins. Co. of Am., 764
F.2d 19, 22 (1st Cir. 1985) (Breyer, J.); see also
Capitol Sprinkley Inspection, Inc. v. Guest Servs.,
Inc., 630 F.3d 217, 227 (D.C. Cir. 2011) (“Rule
54(b) . . . not only authorizes the court to enter a partial
final judgment but also recognizes its inherent power to
reconsider an interlocutory order ‘as justice
requires.'” (quoting Greene, 764 F.2d at
‘as justice requires' standard may be met, for
example, where the court has patently misunderstood a party,
made a decision outside the adversarial issues presented by
the parties, erred not in reasoning but in apprehension of
the relevant issues, or failed to consider a significant
change in the law or facts since its decision.”
Liff v. Office of the Inspector Gen. for the U.S.
Dep't of Labor, No. 14-cv-1162, 2016 WL 6584473, at
*4 (D.D.C. Nov. 7, 2016) (citing Cobell v. Norton,
224 F.R.D. 266, 272 (D.D.C. 2004)). “The considerations
embedded in the ‘as justice requires' standard
leave a great deal of room for the court's
discretion” and, accordingly, the standard amounts to a
determination “whether relief upon reconsideration is
necessary under the relevant circumstances.'”
Wannall v. Honeywell Int'l, Inc., 292 F.R.D. 26,
30 (D.D.C. 2013) (internal quotation marks omitted),
aff'd sub nom. Wannall v. Honeywell, Inc., 775
F.3d 425 (D.C. Cir. 2014). A court's discretion under
Rule 54(b) is not unbounded, however, for once the parties
have “battled for the court's decision, they should
neither be required, nor without good reason permitted, to
battle for it again.” Id. at 30-31 (internal
quotation marks omitted).
parties' arguments are set out before explaining why the
plaintiffs' motion for reconsideration is granted.
The Parties' Arguments
plaintiffs' pending motion requests that the Court
“clarify or reconsider” its conclusion that, as
non-citizens, HAP's members-and, by extension, HAP-fall
outside § 1188(a)(1)'s zone of interests and
therefore lack standing to challenge the 2015 Rule. While
acknowledging the “correct conclu[ison]” that
“American workers” come within §
1188(a)(1)'s zone of interests, the plaintiffs contend
that the Court incorrectly indicated that “American
workers, ” as used in Mendoza, referred only
to American citizens, and not, for example, to lawful
permanent residents. Pls.' Mot. Reconsideration at 2-3
(“T[he Court's] conclusion ignores that one need
not be an American citizen to be an American
worker.” (emphasis in original)). The plaintiffs note
that the Mendoza Court relied on the definition of
“U.S. worker” supplied in 20 C.F.R. §
655.103(b), which expressly includes lawful permanent
residents, Pls.' Mot. Reconsideration at 3, and,
“[a]lthough their immigration status was not mentioned
by the D.C. Circuit, declarations submitted by all the
Mendoza [plaintiffs] indicate they were lawful
permanent residents, ” id. at 3
Further acknowledging that such declarations were absent in
the record before the Court in this case, Pls.' Mot.
Reconsideration at 4 ...