COMITE DE APOYO A LOS TRABAJADORES AGRICOLAS et al v. PEREZ et al

Filing 66

OPINION FILED. Signed by Judge Robert B. Kugler on 8/9/16. (js)

NOT FOR PUBLICATION

(Doc. Nos. 50, 54, & 65)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
COMITÉ DE APOYO A LOS
:
Civil No. 15–4014 (RBK/JS)
TRABAJADORES AGRÍCOLAS, et al.,
:
:
OPINION
Plaintiffs,
:
:
v.
:
:
Thomas E. PEREZ,
:
Secretary of Labor, et al.,
:
:
Defendants. :
___________________________________ :
KUGLER, United States District Judge:
Plaintiffs Comité de Apoyo a los Trabajadores Agrícolas (“CATA”), Antonio Rivera
Martinez, Pineros y Campesinos Unidos del Noroeste (“PCUN”) and Northwest Forest Worker
Center (“NFWC”) move for reconsideration of this Court’s December 7, 2015 Opinion and
Order granting summary judgment to the following Defendants: Thomas E. Perez, in his official
capacity as United States Secretary of Labor; United States Department of Labor; Portia Wu, in
her official capacity as Assistant Secretary, Employment and Training Administration; Jeh
Charles Johnson, in his official capacity as United States Secretary of Homeland Security; and
León Rodriguez, in his official capacity as Director of the United States Citizenship and
Immigration Service. Plaintiffs seek reconsideration of this Court’s holding that CATA and
Plaintiff Rivera do not have standing to challenge 20 C.F.R. § 655.10(f)(4). For the reasons
expressed below, Plaintiffs’ “Amended Motion for Relief Pursuant to Fed. R. Civ. Proc. Rules
59 and 60” (Doc. No. 54) is DENIED.

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I.

BACKGROUND AND PROCEDURAL HISTORY
Plaintiffs filed their Complaint against Defendants on June 12, 2015 (Doc. No. 1).

Plaintiffs brought an Administrative Procedure Act (“APA”) challenge against various
provisions of the Final Rule entitled “Wage Methodology for the Temporary Non-Agricultural
Employment H-2B Program.” 80 Fed. Reg. 24146 (Apr. 29, 2015) (“2015 Wage Rule”). See
Compl. at 1–3 (challenging 20 C.F.R. §§ 655.10(b)(1)–(2), 655.10(f)(1)(i)–(iii), 655.10(f)(4)).
Defendants filed their Answer on July 8, 2015 (Doc. No. 13). On July 15, 2015, Plaintiffs moved
for summary judgment (Doc. No. 21). Defendants opposed Plaintiffs’ motion and cross-moved
for summary judgment on July 17, 2015 (Doc. No. 27).
On December 7, 2015, this Court issued an Opinion deciding the parties’ cross-motions
for summary judgment (Doc. No. 48). The Opinion held that Plaintiffs failed to establish
standing to challenge any provision of the 2015 Wage Rule, and the accompanying Order
entered judgment for Defendants and against Plaintiffs (Doc. No. 49). On January 4, 2016,
Plaintiffs filed their “Motion for Relief Pursuant to Fed. R. Civ. Proc. Rules 59 and 60”, seeking
reconsideration of this Court’s decision that they failed to establish standing to challenge any
provision of the 2015 Wage Rule (Doc. No. 50).1 On January 22, 2016, Plaintiffs filed an
“Amended Motion for Relief Pursuant to Fed. R. Civ. Proc. Rules 59 and 60” (Doc. No. 54).2
Plaintiffs’ Amended Motion seeks reconsideration of this Court’s decision that CATA
and Plaintiff Rivera failed to establish standing to challenge Section 655.10(f)(4) of the 2015

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Plaintiffs’ Motion for Relief was filed on January 4, 2016, without an accompanying brief, to
stay within the 28-day time limit set by Rule 59(b) (Doc. No. 51). This Court granted Plaintiffs’
request for leave to file a memorandum of law by January 22, 2016 (Doc. No. 53).
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Plaintiffs state that “[t]his amended motion is filed to limit the scope of the motion filed on
January 4, 2016 and to set forth further information in support of that motion.” See Pls.’ Amd.
Mot. ¶ 4. This Court will deny as moot Plaintiffs’ January 4, 2016 Motion, and consider solely
Plaintiffs’ January 22, 2016 Amended Motion. 
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Wage Rule. See Pls.’ Amd. Mot., Proposed Order (Doc. No. 54–2). PCUN and NFWC no longer
seek reconsideration of this Court’s decision on their standing to challenge the 2015 Wage Rule.
See id.3 Furthermore, CATA and Plaintiff Rivera do not seek reconsideration of this Court’s
decision regarding any provision of the 2015 Wage Rule other than Section 655.10(f)(4). See id.
Section 655.10(f)(4) provides that, where an employer submits a permissible category of survey,
“the employer must submit . . . specific information about the survey methodology, including
such items as sample size and source, sample selection procedures, and survey job descriptions,
to allow a determination of the adequacy of the data provided and validity of the statistical
methodology used in conducting the survey.”
Defendants timely opposed Plaintiffs’ Amended Motion on February 22, 2016 (Doc. No.
57). Plaintiffs filed their Reply on February 29, 2016 (Doc. No. 58). On March 2, 2016, this
Court granted Defendants leave to file their Sur-Reply (Doc. Nos. 61 & 62). Plaintiffs filed a
“Notice of Supplemental Information” on May 17, 2016 (Doc. No. 63). On May 25, 2016,
Defendants moved for leave to file a response to Plaintiffs’ May 17, 2016 Notice (Doc. No. 65),
which this Court will deny as unnecessary.
II.

STANDARD OF REVIEW
Plaintiffs seek reconsideration pursuant to Rules 59(a)(1)(B),4 59(e), and 60(b)(6) of the

Federal Rules of Civil Procedure. See Pls.’ Amd. Mot. ¶¶ 55–56. The scope of a motion for
reconsideration is “extremely limited” and such motions are “not to be used as an opportunity to
relitigate the case[.]” Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011). Although motions for

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Hereinafter, this Court’s use of “Plaintiffs” will refer only to CATA and Plaintiff Rivera.
Rule 59(a)(1)(B) permits a court to “grant a new trial on all or some of the issues . . . after a
nonjury trial.” Rule 59(a)(1)(B) is not applicable because this case did not reach trial. This Court
entered judgment for Defendant and against Plaintiff pursuant to Rule 56.
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reconsideration under Rule 59(e) and Rule 60(b)(6) “are often used interchangeably,” these
motions “do serve difference purposes and sometimes product different consequences.”
Petrossian v. Collins, 523 Fed. Appx. 861, 863–64 (3d Cir. 2013).
A motion for reconsideration pursuant to Rule 59(e) “must rely on one of three grounds:
(1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need
to correct a clear error of law or prevent manifest injustice.” Wiest v. Lynch, 710 F.3d 121, 128
(3d Cir. 2013) (quoting Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)). For
reconsideration purposes, “new evidence . . . means evidence that a party could not earlier
submit to the court because the evidence was not previously available.” Blystone, 664 F.3d at
415–16 (quoting Howard Hess Dental Labs., Inc. v. Dentsply Int’l Inc., 602 F.3d 237, 252 (3d
Cir. 2010)).
Rule 60(b)(6) “is a catch-all provision that authorizes a court to grant relief from a final
judgment for ‘any . . . reason” other than those listed elsewhere in the Rule. Cox v. Horn, 757
F.3d 113, 120 (3d Cir. 2014) (citing Fed. R. Civ. P. 60(b)(6)). A motion for reconsideration
pursuant to Rule 60(b)(6) is granted “only in cases evidencing extraordinary circumstances.” See
Petrossian, 523 Fed. Appx. at 564 (citing Morris v. Horn, 187 F.3d 333, 341 (3d Cir. 1999)). A
Rule 60(b)(6) motion is not “a substitute for an appeal” or “a means for seeking review of this
Court’s previous opinion in the same case.” Id. (citing Reform Party v. Allegheny Cnty. Dep’t of
Elections, 174 F.3d 305, 312 (3d Cir. 1999)).
III.

DISCUSSION
Plaintiffs argue that they have standing because “each can demonstrate concrete injury

from this regulation’s impact on wage rates and job opportunities for workers in the landscaping
industry in southeastern Pennsylvania, southern New Jersey, and northern Delaware.” Pls.’ Mot.

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¶ 8. Plaintiffs appear to misunderstand both the constitutional requirements for standing and the
extremely limited scope of motions for reconsideration under Rule 59(e) and Rule 60(b)(6).
This Court held that Plaintiff Rivera did not have standing to challenge any provision of
the 2015 Wage Rule because he did not “testify to facts supporting any cognizable Article III
injury.” See Dec. 7, 2015 Op. at 14 (Doc. No. 48). Plaintiff Rivera did not testify that he was
“currently searching or imminently planning to search for another job in competition with H-2B
workers, or that his current employer intends to reduce his wage because of competition with H2B workers.” Id. at 14–15. Plaintiff Rivera averred only that he would be harmed “[i]f [he] were
to look for another job within the landscaping industry[.]” Id. at 15 (citing Rivera Aff. ¶ 10
(emphasis added)). But as this Court previously explained, such “some day” intentions are
wholly insufficient to establish standing. Id. at 15 (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 564 (1992)). Furthermore, this Court held that CATA did not have standing to
challenge any provision of the 2015 Wage Rule because CATA introduced no evidence that it
had standing in its own right or on behalf of its members. See id. at 15–16. CATA failed to
identify any specific CATA member harmed by the challenged provisions of the 2015 Wage
Rule. Id.
Plaintiff Rivera and CATA now move for reconsideration of this Court’s decision that
they did not have standing to challenge Section 655.10(f)(4). Both Plaintiff Rivera and CATA
fail to demonstrate that they are entitled to reconsideration under either Rule 59(e) or Rule
60(b)(6). They do not demonstrate a change in controlling law, dispositive new evidence, or
manifest injustice so as to make this Court reconsider its Opinion pursuant to Rule 59(e).
Furthermore, they fail to demonstrate any “extraordinary circumstances” that would entitle them
to relief under Rule 60(b)(6).

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First, Plaintiffs fail to demonstrate they are entitled to reconsideration due to an
intervening change in controlling law. This Court found that it did not have jurisdiction to decide
Plaintiffs’ challenge to Section 655.10(f)(4). See Dec. 7, 2015 Op. at 15–17. The controlling law
in this Court’s Opinion was therefore Article III of the United States Constitution, and the
binding precedents interpreting Article III’s standing requirements. The constitutional
requirements of Article III standing have not changed since this Court’s December 7, 2015
Opinion. Any changes to the challenged regulations are irrelevant for the purposes of a Rule
59(e) motion for reconsideration.5
Second, Plaintiffs fail to provide any new evidence that justifies reconsideration of this
Court’s Opinion that Section 655.10(f)(4) does not cause a cognizable Article III injury to
Plaintiff Rivera or to CATA, either in its own right or on behalf of its members. This Court may
consider only “new evidence”—that is, evidence that Plaintiffs “could not earlier submit to the
court because the evidence was not previously available.” Blystone, 664 F.3d at 415–16 (quoting
Howard Hess Dental Labs., 602 F.3d at 252). Neither Nelson Carrasquillo6 nor Plaintiff

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Plaintiffs argue that “the Consolidated Appropriations Act, 2016, which was signed into law 11
days after entry of this Court’s Order, have [sic] made the threat of future economic injury
traceable to the challenged provisions of the 2015 Wage Rule even more imminent as to
Plaintiffs Rivera Martinez and CATA[.]” See Pls.’ Amd. Mot. ¶ 10. Plaintiffs admit the statute
requires that “the Secretary shall accept private wage surveys even in instances where
Occupational Employment Statistics survey data are available[.]” See id. ¶ 14 (citing Section 112
of the 2016 Department of Labor Appropriations Act, Pub. L. 114–113, Division H, Title I). This
Court does not see how the statute could make any alleged imminent injury from accepting
private wage surveys traceable to the 2015 Wage Rule—any such injury would be traceable to
the statute itself.
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Mr. Carrasquillo clearly could have, but did not, attest to the circumstances of individual
CATA members in his original declaration. The Court declines to consider whether Mr.
Carrasquillo’s supplemental declaration would have been sufficient to establish associational
standing on behalf of CATA had it been filed when Defendants first challenged CATA’s
standing.
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Rivera’s7 supplemental declarations—written and filed after this Court’s December 7, 2015
Opinion—contain “new evidence” not previously available to Plaintiffs at the summary
judgment stage. Furthermore, the evidence Plaintiffs cite regarding prevailing wage survey
requests for the Maryland seafood industry is completely irrelevant to whether Section
655.10(f)(4) threatens imminent harm to Plaintiff Rivera, CATA, or specific CATA members.
See Pls.’ Amd. Mot. ¶¶ 27–29; Pls. Reply Br. at 1–3. This Court also declines to consider the
evidence presented in Plaintiffs’ Notice of Supplemental Information (Doc. No. 63).8
Third, Plaintiffs fail to demonstrate any “manifest injustice” that entitles them to
reconsideration of this Court’s Opinion. Plaintiffs’ argument that they will suffer “manifest
injustice” if not allowed to bring their challenge to Section 655.10(f)(4), despite their lack of
Article III standing, is wholly unavailing. They have failed to demonstrate a cognizable Article
III injury. This Court does not have the constitutional power to hear their challenge to Section
655.10(f)(4).
Finally, Plaintiffs fail to demonstrate any “extraordinary circumstances” that would
entitle them to reconsideration pursuant to Rule 60(b)(6). Plaintiff Rivera fails to demonstrate
that he suffers a concrete and particularized injury due to the challenged regulation. Again, it is
irrelevant to Plaintiff Rivera’s standing that other workers in his industry and geographic area

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The Court further notes that the attestations contained in Plaintiff Rivera’s supplemental
declaration still fail to establish that Plaintiff Rivera will suffer any cognizable Article III injury
caused by Section 655.10(f)(4). He fails to show that the challenged regulation imminently
threatens any harm to him. The fact that his employer “competes for business with other
employers in southeastern Pennsylvania who also participate in the H-2B program[]” is
irrelevant to Plaintiff Rivera’s standing. Plaintiff Rivera appears to conflate possible injuries
suffered by his employer as injuries to himself. Plaintiff Rivera does not demonstrate that
Section 655.10(f)(4) threatens imminent harm to his personal job opportunities or wages.
8
Even if this Court did consider the Notice, Plaintiffs fail to demonstrate that the cited employerprovided wage surveys have any relevance. Plaintiffs provide no evidence to link those surveys
to any threatened harm to Plaintiff Rivera, CATA, or any specific CATA member.
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may be harmed by the challenged regulation. CATA also fails to demonstrate any “extraordinary
circumstances” that entitle it to reconsideration of this Court’s decision that it does not have
standing, either in its own right or on behalf of its members, to challenge Section 655.10(f)(4).
IV.

CONCLUSION
For the reasons expressed above, Plaintiffs’ Amended Motion (Doc. No. 54) is DENIED.

Dated: 08/09/2016

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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