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Hispanic Affairs Project v. Perez

United States District Court, District of Columbia

November 23, 2016

THOMAS E. PEREZ, in his official capacity as Secretary of U.S. Department of Labor, et al., Defendants.


          BERYL A. HOWELL Chief Judge.

         Pending 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”), [1] 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.

         I. BACKGROUND

         The 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 plaintiffs' motion.

         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).

         To 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.

         The 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.


         Under 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 22)).

         “The ‘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).


         The parties' arguments are set out before explaining why the plaintiffs' motion for reconsideration is granted.

         A. The Parties' Arguments

         The 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 n.2.[2] Further acknowledging that such declarations were absent in the record before the Court in this case, Pls.' Mot. Reconsideration at 4 ...

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