Hispanic Affairs Project v. Perez

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

HISPANIC AFFAIRS PROJECT, et al.,

Plaintiffs,
Civil Action No. 15-cv-01562 (BAH)
v.
Chief Judge Beryl A. Howell
THOMAS E. PEREZ, in his official capacity
as Secretary of U.S. Department of Labor, et
al.,

Defendants.

MEMORANDUM OPINION

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

1
The Court granted a motion to transfer venue, pursuant to 28 U.S.C. § 1404, by the Western Range
Association and the Mountain Plains Agricultural Service. See Hispanic Affairs Project v. Perez, No. 15-cv-01562,
2016 WL 4734350, *21 (D.D.C. Sept. 9, 2016).

1
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

2
(“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.

II. LEGAL STANDARD

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

3
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).

4
III. DISCUSSION

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 (“[The] [p]laintiffs did

not provide details about the HAP members’ precise immigration status.”), the plaintiffs

provided, in support of this motion, supplemental declarations from two HAP members, which

2
The plaintiffs argue, in the alternative, that the defendants “have conceded that HAP members are
American workers and have forfeited any argument to the contrary.” Id. at 4. This contention places too much
weight on the defendants’ failure to dispute the plaintiffs’ cursory references to various HAP members as “American
shepherds” and as being legally authorized to work in the United States.

5
state, for the first time, that the members are lawful permanent residents of the United States.

See Diaz Decl.¶ 2 and Medina Decl. ¶ 2.

The defendants oppose this motion, principally, because they claim to be prejudiced by

reconsideration of the plaintiffs’ late-breaking argument and accompanying declarations. See

Defs.’ Opp’n at 2–4. In particular, the defendants argue that “[b]ased on [the plaintiffs’] prior

representations, the [defendants] argued that ‘American workers – like Llacua – who can

demonstrate informal participation in the herding market ‘fall within the class of individuals

whom the INA seeks to protect . . . .’” Id. at 3 (quoting Defs.’ Mem. Support Mot. Dismiss Pls.’

Am. Compl., ECF No. 64-1 (emphasis added)); accord id. at 2 (explaining that “this litigation

began in August, 2015 and has been subject to three different operative Complaints” and that the

plaintiffs “have not once submitted any specific, competent evidentiary matter indicating any of

HAP’s members are non-foreign workers”). The defendants go on to explain that they “might

have argued the point differently and actually addressed whether HAP is within the section

1188’s zone of interests had [the plaintiffs] actually submitted factual matter indicating any of its

members were [lawful permanent residents].” Id. at 3–4. 3

In light of the defendants’ assertion of prejudice and possible arguments they might have

made, the Court afforded the defendants an opportunity to “provide . . . an explanation of any

additional arguments the defendants might have raised as to whether HAP comes within 8 U.S.C.

§ 1188(a)(1)’s zone of interests.” Minute Order (dated Nov. 10, 2016). The defendants

responded, stating that they “do[] not have any additional arguments concerning whether HAP is

3
The plaintiffs note that “[t]he Government does not dispute that Mendoza dictates that legal permanent
residents have standing to challenge the 2015 Rule.” Pls.’ Reply Supp. Mot. Clarification or Reconsideration at 1,
ECF No. 86.

6
within 8 U.S.C. § 1188(a)(1)’s zone of interests.” Gov’t Defs.’ Resp. Court Order Dated Nov.

10, 2016 (“Defs.’ Resp. Court Order”) at 2, ECF No. 88. 4

B. Some HAP Members are “American Workers”

The plaintiffs contend that the suggestion in the challenged Memorandum Opinion that

all non-citizens fall outside § 1188(a)(1)’s zone of interests is imprecise and an overreading of

Mendoza. The Court agrees. In Mendoza, the D.C. Circuit explained that “the clear intent of

[§ 1181(a)(1)] is to protect American workers from the deleterious effects the employment of

foreign labor might have on domestic wages and working conditions.” Mendoza, 754 F.3d at

1017. Further, the D.C. Circuit held that the plaintiffs were “American workers” whose

“interests [we]re squarely within the zone of interests protected” by § 1181(a)(1). Id.; see also

id. at 1009 (“The plaintiffs currently have a lawful immigration status and are authorized to work

in the United States, thus qualifying as U.S. workers under the INA and H-2A regulations.” 5).

No distinctions were drawn based on citizenship, and indeed, three of the Mendoza plaintiffs

were lawful permanent residents—not citizens—and this fact gave the D.C. Circuit no pause.

See Declarations of Reymundo Zacarias Mendoza, Francisco Javier Castro, and Sergio

Velasquez Catalan, Mendoza v. Perez, No. 11-cv-1790-BAH (filed Feb. 13, 2012), ECF Nos. 26-

1 ¶ 8, 26-2 ¶ 6, 26-4 ¶ 7.

4
Instead, the defendants argue that “reconsideration should not be granted absent an express finding ‘that
there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error
or prevent manifest injustice.’” Id. (quoting Nat’l Sec. Counselors v. CIA, Nos. 11-443, 11-444, 11-445, 2016 WL
4621060, *6 (D.D.C. Sept. 6, 2016)). Problematically, however, the standard that the defendants invoke applies in
the context of a post-judgment motion for reconsideration pursuant to Rule 59(e). As discussed above, that standard
is more stringent than the “as justice requires” standard that applies here to a Rule 54(b) motion.
5
As the plaintiffs indicate, this dicta in the background section of Mendoza arguably could be read to
suggest that H-2A workers qualify as “American workers” within the meaning of the statute. The Court need not
reconsider this question, however, as the plaintiffs expressly state that they do not challenge that aspect of the
Court’s previous opinion. See Pls.’ Mot. Reconsideration at 3 n.1 (“[The] [p]laintiffs do not press this separate issue
in this motion.”).

7
 Here, HAP has at least two members who are lawful permanent residents of the United

States. Although this fact was not brought to the Court’s attention until the plaintiffs moved for

reconsideration, see Pls.’ Mot. Reconsideration at 4 (acknowledging that the plaintiffs may have

caused “confusion” by “not provid[ing] details about the HAP members’ precise immigration

status” earlier in the litigation), it is now clear that these members, as lawful permanent residents,

fall within § 1188(a)(1)’s zone of interests. 6 Under Mendoza, HAP members also meet the

requirements for Article III standing. See Hispanic Affairs Project, 2016 WL 4734350 at *14–

15. Accordingly, HAP has standing to join in Mr. Llacua’s challenge to the 2015 Rule. See

Sierra Club v. FERC, 827 F.3d 59, 65 (D.C. Cir. 2016) (“An organization has associational

standing to bring suit on its members’ behalf when: (1) at least one of its members would have

standing to sue in his or her own right; (2) the interests it seeks to protect are germane to the

organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.” (internal quotation marks omitted); see also

Hispanic Affairs Project, 2016 WL 4734350 at *14 n.8 (explaining that HAP had met the

requirements for associational standing except that it had not “provid[ed] the necessary

information regarding whether any of its members are American workers”).

IV. CONCLUSION

For the foregoing reasons, the plaintiffs’ Motion for Clarification or Reconsideration of

Order on Motions to Dismiss is granted. Accordingly, HAP has established, through its

6
As noted, the defendants contend that this revelation came too late and should not be considered by the
Court. See Defs.’ Opp’n at 2 (“That late-breaking allegation does not provide any basis to reconsider the Court’s
prior ruling.”). The defendants, however, have been unable to identify any prejudice they suffer as a result of the
belated submission of the affidavits. Indeed, as the defendants themselves point out, the Court’s Order ruling on the
defendants’ motion to dismiss held that at least one plaintiff—Mr. Llacua, the American sheepherder—falls within
§ 1188(a)(1)’s zone of interests and therefore has standing to challenge the 2015 Rule. See Defs.’ Resp. Court Order
at 3 (“Llacua[] retains causes of action against the [d]efendants as to the 2015 Rule at issue in this case.”).
Accordingly, the trajectory of this litigation remains virtually unchanged by granting the plaintiffs’ motion for
reconsideration and holding that HAP has standing to challenge the 2015 Rule.

8
members, that it falls within the zone of interests of 8 U.S.C. § 1188(a)(1), and that it may

challenge the 2015 Rule along with Rodolfo Llacua. An order consistent with this opinion will

be contemporaneously entered.

Digitally signed by Hon. Beryl A.
Date: November 23, 2016 Howell
DN: cn=Hon. Beryl A. Howell, o,
ou=Chief Judge, U.S. District
Court for the District of
Columbia,
email=Howell_Chambers@dcd.u
scourts.gov, c=US
Date: 2016.11.23 11:49:54 -05'00'
__________________________
BERYL A. HOWELL
Chief Judge

9