Impossible Foods Inc. v. Jaddou

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IMPOSSIBLE FOODS INC., Case No. 23-cv-02720-DMR

8 Plaintiff, ORDER ON PLAINTIFF'S MOTION 9 v. TO ALTER OR AMEND

10 UR MENDOZA JADDOU, Re: Dkt. No. 28 11 Defendant.

12 13 Plaintiff Impossible Foods, Inc. filed this action to challenge the United States Citizenship 14 and Immigration Services’ (“USCIS”) denial of its I-140 petition to classify an employee as an 15 “outstanding professor or researcher” for purposes of an immigrant visa petition. On January 22, 16 2024, the court granted Defendant Ur M. Jaddou’s motion to dismiss Plaintiff’s first claim for 17 relief with prejudice. [Docket No. 28 (Jan. 22, 2024 Order).] Plaintiff now moves pursuant to 18 Federal Rule of Civil Procedure 59(e) to alter or amend the January 22, 2024 Order, or in the 19 alternative, to amend the complaint pursuant to Rule 15(a)(2). [Docket No. 28.] The motion is 20 suitable for resolution without a hearing. Civ. L.R. 7-1(b). For the following reasons, the motion 21 is denied. 22 I. BACKGROUND 23 In 2022, Plaintiff filed an I-140 petition to classify its employee, Seshadri Gowrishankar, 24 as an “outstanding professor or researcher” for purposes of an immigrant visa petition pursuant to 25 8 U.S.C. § 1153(b)(1)(B)(i). [Docket No. 3 (Compl.) ¶ 16.] USCIS denied the petition in July 26 2022, finding that Plaintiff failed to demonstrate by a preponderance of the evidence that 27 Gowrishankar “is recognized internationally as outstanding in the academic field.” Compl. ¶ 19, 1 Plaintiff alleges that USCIS reviewed its I-140 petition under the two-step framework set 2 forth in USCIS’s Policy Manual to determine eligibility for the outstanding professor or researcher 3 classification, known as the “Kazarian policy.” See Compl. ¶ 14, 26. By way of background, in 4 December 2010, USCIS issued a Policy Memo regarding I-140 Petitions in which it explained that 5 it adopts the “two-part adjudicative approach to evaluating evidence submitted in connection with 6 petitions for aliens of extraordinary ability” from Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 7 2010). Compl. Ex. A (Policy Memo) 3. Under the two-part approach, USCIS determines at the 8 first step whether the petitioner submitted the required “initial evidence” listed in the applicable 9 regulation. At the second step, USCIS conducts a “final merits determination” “on the entire 10 petition” to determine whether the evidence “is sufficient to demonstrate that the beneficiary or 11 self-petitioner meets the required high level of expertise.” Policy Memo 4. 12 Plaintiff filed the complaint in June 2023 alleging three claims. Only claim one is relevant 13 to this motion. Claim one alleged that USCIS improperly adopted the Kazarian policy outside of 14 the formal rulemaking provisions mandated in the Administrative Procedure Act (“APA”), 5 15 U.S.C. § 553, by not undergoing a notice-and-comment period. Compl. ¶¶ 48-94.1 16 Defendant moved pursuant to Rules 12(b)(6) and 12(b)(1) to dismiss claim one, arguing 17 that the USCIS’s adoption of the Kazarian policy was lawful and did not require a notice-and- 18 comment period and that the claim is time-barred. On January 22, 2024, the court granted the 19 motion to dismiss with prejudice on the ground that Plaintiff had not established that the Kazarian 20 policy constitutes a legislative rule subject to notice and comment rulemaking under applicable 21 Ninth Circuit authority. Jan. 22, 2024 Order 10. The court did not reach Defendant’s argument 22 that the claim is barred by the statute of limitations. Id. at 10 n.10. 23 Plaintiff now moves pursuant to Rule 59(e) to alter or amend the January 22, 2024 Order. 24 In the alternative, Plaintiff moves for leave to amend the complaint. 25

26 1 Claim two alleges that USCIS’s denial of Plaintiff’s I-140 petition was arbitrary, capricious, and contrary to law in violation of the APA, Compl. ¶¶ 95-103, and claim three alleges that Defendant 27 violated the APA by erroneously applying a clear and convincing evidence standard of proof II. DISCUSSION 1 “Rule 59(e) permits a district court to reconsider and amend a previous order.” Kona 2 Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). However, it is an 3 “extraordinary remedy” which “should not be granted, absent highly unusual circumstances, 4 unless the district court is presented with newly discovered evidence, committed clear error, or if 5 there is an intervening change in the controlling law.” Id. (citations and internal quotation marks 6 omitted). “A Rule 59(e) motion may not be used to raise arguments or present evidence for the 7 first time when they could reasonably have been raised earlier in the litigation.” Id. (emphasis in 8 original). 9 A Rule 59(e) motion “must be filed no later than 28 days after the entry of the judgment.” 10 Fed. R. Civ. P. 59(e). A district court “[has] no power to extend the time for filing a Rule 59(e) 11 motion.” Harman v. Harper, 7 F.3d 1455, 1458 (9th Cir. 1993); Scott v. Younger, 739 F.2d 1464, 12 1467 (9th Cir. 1984) (“That time period [specified in Rule 59(e)] is jurisdictional and cannot be 13 extended by the court.”); Carter v. United States, 973 F.2d 1479, 1488 (9th Cir. 1992) (“the 14 district court has no discretion to consider a late rule 59(e) motion”); Amerson v. Kindredcare, 15 Inc., 606 Fed. App’x. 371, 372 (9th Cir. 2015) (“The time period for filing a Rule 59(e) motion is 16 jurisdictional and cannot be extended by the court.”). 17 Here, Plaintiff asks the court to amend or alter the January 22, 2024 Order based on “clear 18 error.” Plaintiff filed the instant motion on February 21, 2024, more than 28 days after the Order 19 was entered. Accordingly, the court lacks jurisdiction to grant Plaintiff’s Rule 59(e) motion. See 20 Amerson, 606 Fed. App’x at 372 (affirming denial of untimely Rule 59(e) motion). 21 The court will construe Plaintiff’s untimely Rule 59(e) motion as a motion for leave to file 22 a motion for reconsideration pursuant to Civil Local Rule 7-9. That rule provides that “[b]efore 23 the entry of a judgment adjudicating all of the claims and the rights and liabilities of all the parties 24 in a case, any party may make a motion before a Judge requesting that the Judge grant the party 25 leave to file a motion for reconsideration of any interlocutory order on any ground set forth in 26 Civil L.R. 7-9 (b).” A party seeking leave to file a motion for reconsideration must “show 27 reasonable diligence in bringing the motion” and one of the following three grounds: (1) a material 1 difference in fact or law exists from that which was presented to the court, which, in the exercise 2 of reasonable diligence, the party applying for reconsideration did not know at the time of the 3 order for which reconsideration is sought; (2) the emergence of new material facts or a change of 4 law; or (3) a manifest failure by the court to consider material facts or dispositive legal arguments 5 presented before such order. Civ. L.R. 7-9(b)(1)-(3). The moving party may not reargue any 6 written or oral argument previously asserted to the court. Civ. L.R. 7-9(c). “Motions for 7 reconsideration are generally disfavored, and are not the place for parties to make new arguments 8 not raised in their original briefs.” Whalen v. Ford Motor Co., No. 13-CV-03072-EMC, 2018 WL 9 6069812, at *1 (N.D. Cal. Nov. 20, 2018) (citing Northwest Acceptance Corp. v. Lynnwood 10 Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988)). 11 Plaintiff asserts that the court failed to consider its dispositive legal arguments, as follows. 12 Defendant argued in the motion to dismiss that the Kazarian policy “is an interpretive rule” and 13 “was lawfully adopted without a notice-and-comment rulemaking process because it is not a 14 legislative rule.” Jan. 22, 2024 Order 6 (citations omitted). Defendant cited several cases from 15 outside of the Ninth Circuit holding that USCIS’s adoption of the Kazarian policy was lawful and 16 did not require a notice-and-comment period and argued that there was no “meaningful 17 distin[ction]” between Plaintiff’s claim one and the challenges considered by other courts. Id. at 18 6-8 (citations omitted). 19 In its opposition, Plaintiff argued, “[t]he persuasive authority cited by the Defendant does 20 not comport with the applicable Ninth Circuit precedent.” [See Docket No. 17 (Pl.’s Opp’n) 3.] 21 Specifically, Plaintiff claimed that Defendant failed to address “whether the final merits 22 determination [requirement] amends a previous legislative rule” under the applicable Ninth Circuit 23 test set forth in Erringer v. Thompson, 371 F.3d 625, 630 (9th Cir. 2004), which it described as 24 “the crux of Count I of Plaintiff’s Complaint.” Id. at 8 (citing Pl.’s Opp’n 5). Plaintiff went on to 25 assert, “Plaintiff has alleged in the Complaint that the Kazarian policy effectively amended a prior 26 legislative rule,” citing paragraph 68 in the complaint, and argued, “[t]he Court should apply the 27 relevant Ninth Circuit test espoused in Erringer v. Thompson to determine whether the Kazarian 1 part, paragraph 68 of the complaint alleges in a conclusory fashion that “[t]he enactment of an 2 entirely new [final merits] analysis to be completed in addition to the 8 C.F.R. § 204.5(i)(3) 3 requirements, ‘amends a prior legislative rule’ and thus is subject to the notice and comment 4 requirements of the APA. Erringer v. Thompson, 371 F.3d 625, 629-30 (9th Cir. 2004).” Compl. 5 ¶ 68. 6 The court discussed Erringer at length in the January 22, 2024 Order:

7 The Ninth Circuit has explained that “[i]n general terms, interpretive rules merely explain, but do not add to, the substantive law that 8 already exists in the form of a statute or legislative rule. Legislative rules, on the other hand, create rights, impose obligations, or effect a 9 change in existing law pursuant to authority delegated by Congress.” Erringer, 371 F.3d at 630 (quoting Hemp Indus. Ass'n v. DEA, 333 10 F.3d 1082, 1087 (9th Cir. 2003)). “[L]egislative rules have the ‘force of law,’ while interpretive rules do not.” Id. (quoting Hemp Industries, 11 333 F.3d at 1088). The court uses a three-part test for determining whether a rule has the “force of law,” as follows: “(1) when, in the 12 absence of the rule, there would not be an adequate legislative basis for enforcement action; (2) when the agency has explicitly invoked 13 its general legislative authority; or (3) when the rule effectively amends a prior legislative rule.” Id. (quoting Hemp Industries, 333 14 F.3d at 1088). . . .

15 In relevant part, Erringer says “[a]ny rule that effectively amends a prior legislative rule is legislative and must be promulgated under 16 notice and comment rulemaking.” Erringer, 371 F.3d at 632. “The reasoning is that ‘[a]n agency is not allowed to change a legislative 17 rule retroactively through the process of disingenuous interpretation of the rule to mean something other than its original meaning.” Id. 18 (quoting Hemp Industries, 333 F.3d at 1091). “[A] rule is considered legislative under the ‘amends a prior legislative rule’ test ‘only if it is 19 inconsistent with another rule having the force of law.” Id. (quoting Hemp Industries, 333 F.3d at 1088). 20 21 Jan. 22, 2024 Order 8-9. The court observed that “[a]lthough Plaintiff faults Defendant for failing 22 to address Erringer, Plaintiff suffers from the same problem; its opposition brief does not apply 23 Erringer to the case at hand.” Id. at 9. The court then identified “[a] fundamental problem” with 24 Plaintiff’s argument: “Plaintiff does not clearly identify the prior legislative rule that purportedly 25 was amended by the Kazarian policy,” concluding that “[t]his alone is fatal to its argument.” Id. 26 The court then went on to analyze a case cited throughout the complaint, Buletini v. INS, 860 F. 27 Supp. 1224, 1234 (E.D. Mich. 1994), and found that Plaintiff had offered no support that Buletini 1 that there was a ‘prior legislative rule’ in effect that the Kazarian policy amended and thus has not 2 established that the Kazarian policy constitutes a legislative rule under Erringer, subject to notice 3 and comment rulemaking.” Id. at 10. Noting that “Plaintiff offers no other argument that the 4 APA’s ‘notice-and-comment’ requirement applied to the Kazarian policy under the test set forth 5 in Erringer,” the court dismissed claim one with prejudice. Id. 6 Plaintiff now argues that the court erred in stating that Plaintiff “does not clearly identify 7 the prior legislative rule that purportedly was amended by the Kazarian policy” because paragraph 8 58 of the complaint alleges that the Policy Memo adopting Kazarian “amends 8 C.F.R. § 9 204.5(i).” Mot. 2-3. Plaintiff contends that the opposition brief mistakenly cited paragraph 68 for 10 this point instead of paragraph 58. Id. at 3 n.1. Plaintiff then sets out a lengthy argument that the 11 Kazarian policy amended a prior legislative rule and thus should have been promulgated under 12 notice-and-comment rulemaking. Id. at 3-11. Plaintiff also addresses and attempts to distinguish 13 two of the cases cited by Defendant in its motion and discussed in the January 22, 2024 Order, 14 Amin v. Mayorkas, 24 F.4th 383, 388-89 (5th Cir. 2022), and Etsy, Inc. v. Jaddou, No. 15 4:22CV3022, 2023 WL 3689555, at *20-23 (D. Neb. May 25, 2023), that held that the Policy 16 Memo was not a legislative rule subject to the notice-and-comment requirement. See id. at 9-10; 17 Jan. 22, 2024 Order 7-8. 18 Plaintiff’s motion lacks merit. Plaintiff has not identified a manifest failure by the court to 19 consider dispositive legal arguments, namely because Plaintiff’s opposition brief did not present 20 any argument supporting its contention that the Kazarian policy amended a prior legislative rule 21 and thus was subject to the notice-and-comment requirement. Rather, the opposition simply asked 22 the court to apply Erringer without offering any analysis or even identifying the facts relevant to 23 that analysis. Plaintiff admits that it did not identify the portion of its complaint identifying the 24 purported prior legislative rule that the Kazarian policy allegedly amended. The instant motion is 25 simply an improper attempt to make the arguments that Plaintiff should have presented with its 26 original opposition to the motion to dismiss but inexplicably did not. See Whalen, 2018 WL 27 6069812, at *1 (reconsideration motions “are not the place for parties to make new arguments not 1 (“It is not the purpose of allowing motions for reconsideration to enable a party to complete 2 || presenting his case after the court has ruled against him. Were such a procedure to be 3 || countenanced, some lawsuits really might never end, rather than just seeming endless.”). Plaintiff 4 || cannot use a motion for reconsideration to get a “second bite” at something it could and should 5 have put before the court in the first instance. The narrow grounds for reconsideration promote 6 || fair and efficient use of party and court resources. Given Plaintiffs failure to show “[a] manifest 7 failure by the Court to consider . . . dispositive legal arguments which were presented to the Court 8 before” the January 22, 2024 Order, the motion for leave to file a motion for reconsideration is 9 || denied. 10 In the alternative, Plaintiff moves for leave to amend the complaint to clarify that USCIS’s 11 adoption of the Kazarian policy amended 8 C.F.R. § 204.54). Mot. 13-14. This is simply another a 12 attempt to obtain reconsideration of the January 22, 2024 Order, since Plaintiff only seeks to

13 amend to “clarify” the basis for claim one. /d. at 13. The motion is denied.

14 |] I. CONCLUSION

15 For the foregoing reasons, Plaintiff's motion for leave to file a motion for reconsideration a. A 16 of the January 22, 2024 Order is denied. ES DISTR aD QD KE) □□ Z 18 IT IS SO ORDERED. i □ ERED 19 || Dated: May 28, 2024 □□ □□□ 3 2 < 20 / yy, ANG Z apd Ryu M. RYU | □ 21 O Tee Wok © gf PAS are Ky 22 □ s 23 oO DIsTRICS 24 25 26 27 28