Washington Alliance of Technology Workersdepartment v. of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
WASHINGTON ALLIANCE OF )
TECHNOLOGY WORKERS, )
)
Plaintiff, )
) Civil Action No. 16-1170 (RBW)
v. )
)
U.S. DEPARTMENT OF )
HOMELAND SECURITY, et al., )
)
Defendants. )
____________________________________ )
MEMORANDUM OPINION
The plaintiff, the Washington Alliance of Technology Workers (“Washtech”), a
collective-bargaining organization representing science, technology, engineering, and
mathematics (“STEM”) workers, brought this action against the defendants, the United States
Department of Homeland Security (“DHS”), the Secretary of Homeland Security, the United
States Immigration and Customs Enforcement (“ICE”), the Director of ICE, the United States
Citizenship and Immigration Services (“Citizenship and Immigration Services”), and the
Director of Citizenship and Immigration Services (collectively, the “Government”) challenging,
pursuant to the Administrative Procedure Act (the “APA”), 5 U.S.C. §§ 701–06 (2012), DHS’s
1992 regulation creating a twelve-month optional practical training program (“OPT or OPT
Program”) for nonimmigrant foreign nationals on F-1 student visas (the “1992 OPT Program
Rule”), see 8 C.F.R. § 214.2(f)(10)(ii)(1992), and DHS’s 2016 regulation extending the OPT
Program by an additional twenty-four months for eligible STEM students (the “2016 OPT
Program Rule”), see Complaint (“Compl.”) ¶¶ 1–5, 8; see also 81 Fed. Reg. 13,040 (Mar. 11,
2016) (codified at 8 C.F.R. §§ 214 and 274a). Currently pending before the Court is the
Defendants’ Motion to Dismiss Plaintiff’s Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and (6)
(“Gov’t’s Mot.”), ECF No. 18, which seeks dismissal of the Complaint on the grounds that this
Court lacks subject matter jurisdiction to adjudicate Washtech’s complaint; Washtech lacks
standing to pursue this action; Washtech’s challenge to the 1992 OPT Program Rule is
time-barred; and Washtech has failed to state a claim upon which relief may be granted. Upon
careful consideration of the parties’ submissions, 1 the Court concludes that it must deny in part
and grant in part the Government’s motion to dismiss.
I. BACKGROUND
A. Statutory and Legal Background
An F-1 visa provides foreign national students valid immigration status for the duration
of a full course of study at an approved academic institution in the United States. See 8 U.S.C.
§ 1101(a)(15)(F)(i). Since 1947, F-1 visa students, in conjunction with pursuing a course of
study, have been able to engage in some version of OPT during their studies or on a temporary
basis after the completion of their studies. See 8 C.F.R. § 125.15(b) (1947). And since 1992,
F-1 visa students have been allowed to apply for up to twelve months of OPT, to be used either
during or following the completion of their degree requirements. See 8 C.F.R. § 214.2(f)(10)
(2016).
“In April 2008, DHS issued an interim final rule with request for comments extending the
[twelve]-month OPT [P]rogram by an additional [seventeen] months for F-1 [visa]
nonimmigrants with qualifying STEM degrees, to a total of [twenty-nine] months.” Gov’t’s
1
In addition to the filings already identified, the Court considered the following submissions in reaching its
decision: (1) the Defendants’ Memorandum and Points of Authorities in Support of the Motion to Dismiss (“Gov’t’s
Mem.”); (2) the Plaintiff’s Response to Defendant[s’] Motion to Dismiss (“Washtech’s Opp’n”); and (3) the
Defendants’ Reply in Support of the Motion to Dismiss (“Gov’t’s Reply”).
2
Mem. at 4 (citing Extending Period of Optional Practical Training by 17 Months for F-1
Nonimmigrant Students with STEM Degrees, 73 Fed. Reg. 18,944 (Apr. 8, 2008) (the “2008
OPT Program Rule”)); see also Washtech’s Opp’n at 3. The goal of this extension was to help
alleviate a “competitive disadvantage” for United States employers recruiting STEM-skilled
workers educated in the United States under the H-1B visa program. 73 Fed. Reg. 18,944. H-1B
visas are temporary employment visas granted annually to foreign nationals in “specialty
occupations,” including many occupations in the STEM field. 8 C.F.R. § 214.2(h)(1)(ii)(B).
The number of H-1B visas issued on an annual basis is limited, and the program is
oversubscribed. See 73 Fed. Reg. at 18,946. The extension provided by the 2008 OPT Program
Rule sought to “expand the number of alien STEM workers that could be employed in the
[United States],” Compl. ¶ 46; see also 73 Fed. Reg. at 18,953, and explicitly referenced the
specific concern regarding the rigidity of the H-1B visa program, see 73 Fed. Reg. at 18,946–47.
In 2014, Washtech filed suit, challenging on procedural and substantive grounds, both the
underlying twelve-month 1992 OPT Program Rule and the seventeen-month extension added by
the 2008 OPT Program Rule. See Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec.
(“Washtech I”), 74 F. Supp. 3d 247, 251–52 (D.D.C. 2014). There, another member of this
Court found that Washtech lacked standing to challenge the 1992 OPT Program Rule, see id. at
252–53, but did have standing to challenge the 2008 OPT Program Rule, see id. at 253. The
Court, however, vacated the 2008 OPT Program Rule because it had been promulgated without
notice and comment, see Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec.
(“Washtech II”), 156 F. Supp. 3d 123, 149 (D.D.C. 2015), judgment vacated, appeal dismissed,
650 Fed. App’x 13 (D.C. Cir. 2016), and stayed vacatur of the rule to allow DHS to promulgate a
new rule, id. On appeal of that decision to the District of Columbia Circuit, Washtech alleged
3
that the court “had improperly allowed DHS to continue the policies unlawfully put in place in
the 2008 OPT Rule . . . [and that] the OPT program was [not] within DHS[’s] authority.”
Washtech’s Opp’n at 4.
In response to this Court’s colleague’s ruling, DHS issued a notice of proposed
rulemaking on October 19, 2015, requesting the submission of public comments prior to
November 18, 2015. See Improving and Expanding Training Opportunities for F-1
Nonimmigrant Students with STEM Degrees, 80 Fed. Reg. 63,376 (Oct. 19, 2015). Whereas the
2008 OPT Program Rule had extended the OPT Program tenure by seventeen months for eligible
STEM students, this notice instead proposed extending the OPT Program tenure by twenty-four
months. See id. (explaining that “[t]his [twenty-four] month extension would effectively replace
the [seventeen] month STEM OPT [Program] extension currently available to certain STEM
students”). The notice also deviated from the 2008 OPT Program Rule in several other respects.
See id. at 63,379–94 (discussing the proposed changes in detail). Namely, the notice contained a
distinct change in tone—it dropped all references to the H-1B visa program that had been in the
2008 OPT Program Rule and instead explained that its purpose was to “better ensure that
students gain valuable practical STEM experience that supplements knowledge gained through
their academic studies, while preventing adverse effects to [United States] workers.” Id. at
63,376.
On March 11, 2016, after the expiration of the public notice and comment period, DHS
issued the final version of the 2016 OPT Program Rule. See Improving and Expanding Training
Opportunities for F-1 Nonimmigrant Students with STEM Degrees, 81 Fed. Reg. 13,040 (Mar.
11, 2016) (codified at 8 C.F.R. §§ 214 and 274a). The District of Columbia Circuit then
dismissed as moot Washtech’s appeal challenging the 2008 OPT Program Rule and vacated this
4
Court’s colleague’s judgment in its entirety. See Washtech II, 650 Fed. App’x. at 14. On June
17, 2016, Washtech initiated this action.
B. Current Posture of Washtech’s Challenges to the OPT Program
Washtech alleges that the 1992 OPT Program Rule and 2016 OPT Program Rule “exceed
the authority of DHS [under] several provisions of the Immigration and Nationality Act
(‘INA’),” Compl. ¶ 4, (Counts I and II); that the 2016 OPT Program Rule was issued in violation
of the Congressional Review Act (the “CRA”) because of non-compliance with the notice and
comment and incorporation by reference requirements of the statute (Count III), see id. ¶¶ 64–
80; and that the 2016 OPT Program Rule is arbitrary and capricious (Count IV), see id. ¶¶ 81–84.
Also in its Complaint, Washtech names three of its members that have allegedly suffered injury
as a result of the 1992 and 2016 OPT Program Rules—Rennie Sawade, Douglas Blatt, and
Ceasar Smith (collectively, the “Named Washtech Members”). See id. ¶¶ 106, 137, 184.
Sawade and Blatt work in computer programming, and Smith is a computer systems and
networking administrator—all fields that fall within the STEM designation. 2 Id. Between April
2008 and March 2016, the Named Washtech Members unsuccessfully applied for several jobs in
the STEM field with companies that either “placed job advertisements seeking workers on OPT,”
see id. ¶ 140, or sought multiple OPT extension applications for their current workers, see id. ¶¶
186–219. Washtech alleges that all three named members were unable to obtain the jobs for
which they had applied because “the 2016 OPT [Program] Rule and the 1992 OPT [Program]
Rule allow additional competitors into Washtech members’ job market,” thereby forcing
2
Although STEM has no standard definition, the fields in which Washtech members work are commonly considered
part of the same job market. Indeed, the 2016 OPT Program Rule consistently refers to the “STEM field” to
describe the job market in question, and DHS maintains a list of fields within the STEM umbrella on its website
pursuant to 81 Fed. Reg. 13,118. See Washtech’s Opp’n at 8, 13; see also STEM Designated Degree Program List,
U.S. Immigration Customs and Enforcement,
https://www.ice.gov/sites/default/files/documents/Document/2016/stem-list.pdf. Sawade, Blatt, and Smith all work
in professions that are on DHS’s list, see Compl. ¶¶ 106, 137, 184, therefore qualifying them as STEM workers.
5
Washtech members to compete with foreign labor for employment opportunities. Washtech’s
Opp’n at 15.
In response to Washtech’s Complaint, the Government has filed a motion to dismiss,
arguing that Washtech lacks standing to challenge both the 1992 and 2016 OPT Program Rules,
that Washtech’s “challenge to the 1992 Rule is time-barred,” and that Washtech “fails to allege
any plausible claim for relief as to all counts as [Washtech] is not within the zone-of-interests
protected by [the F-1 visa statute] and because [Washtech] fails to plead facts satisfying Rule
12(b)(6)’s plausibility standard.” Gov’t’s Mot. at 2. The Court will address each of the
Government’s arguments in turn.
II. STANDARDS OF REVIEW
A. Rule 12(b)(1) Motion to Dismiss
Federal district courts are courts of limited jurisdiction, Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994), and “[a] motion for dismissal under [Federal Rule of Civil
Procedure] 12(b)(1) ‘presents a threshold challenge to the court’s jurisdiction . . . .’” Morrow v.
United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v. Sessions,
835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, a district court is obligated to dismiss a claim if it
“lack[s] . . . subject matter jurisdiction[.]” Fed. R. Civ. P. 12(b)(1). Because “it is presumed that
a cause lies outside [a federal court’s] limited jurisdiction,” Kokkonen, 511 U.S. at 377, the
plaintiff bears the burden of establishing by a preponderance of the evidence that a district court
has subject matter jurisdiction, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
In deciding a motion to dismiss based upon lack of subject matter jurisdiction, the district
court “need not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal
Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001). Rather, “a court may consider
6
such materials outside the pleadings as it deems appropriate to resolve the question [of] whether
it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d
18, 22 (D.D.C. 2000); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.
Cir. 2005). Additionally, a district court must “assume the truth of all material factual
allegations in the complaint and ‘construe the complaint liberally, granting [the] plaintiff the
benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC,
642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir.
2005)). However, “the [p]laintiff’s factual allegations in the complaint . . . will bear closer
scrutiny in resolving a 12(b)(1) motion than resolving a 12(b)(6) motion for failure to state a
claim.” Grand Lodge, 185 F. Supp. 2d at 13–14 (citation and internal quotation marks omitted).
B. Rule 12(b)(6) Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) tests whether the complaint properly “state[s] a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 8(a) requires only that a
complaint provide “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). But although “detailed factual allegations” are not
required, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)), a plaintiff must provide “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation,” id. Rather, the “complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw [a] reasonable inference that the defendant is liable
for the misconduct alleged.” Id. A complaint alleging “facts [that] are ‘merely consistent with’ a
defendant’s liability . . . ‘stops short of the line between possibility and plausibility of entitlement
7
to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
“In evaluating a Rule 12(b)(6) motion, the Court must construe the complaint ‘in favor of
the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts
alleged.’” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v.
United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). However, conclusory allegations are not
entitled to an assumption of truth, and even allegations pleaded with factual support need only be
accepted insofar as “they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
Along with the allegations made within the four corners of the complaint, the court can consider
“any documents either attached to or incorporated in the complaint and matters of which [it] may
take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997).
III. ANALYSIS
A. Constitutional Standing
As the starting point of its analysis, the Court must “begin . . . with the question of
subject matter jurisdiction.” Am. Freedom Law Ctr. v. Obama, 106 F. Supp. 3d 104, 108
(D.D.C. 2015) (Walton, J.) (quoting Aamer v. Obama, 742 F.3d 1023, 1028 (D.C. Cir. 2014));
see also NO Gas Pipeline v. Fed. Energy Regulator Comm’n, 756 F.3d 764, 767 (D.C. Cir. 2014)
(“It is fundamental to federal jurisprudence that Article III courts such as ours are courts of
limited jurisdiction. Therefore, ‘we must examine our authority to hear a case before we can
determine the merits.’” (quoting Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 47
(D.C. Cir. 1999))). “Article III of the Constitution limits the jurisdiction of federal courts to
‘Cases’ and ‘Controversies.’” Susan B. Anthony List v. Driehaus, __ U.S. __, __, 134 S. Ct.
2334, 2341 (2014) (quoting U.S. Const., art. III, § 2). “The doctrine of standing gives meaning
8
to these constitutional limits of Article III by identify[ing] those disputes which are appropriately
resolved through the judicial process.” Id. (quoting Lujan, 504 U.S. at 560). “Indeed, the Court
‘need not delve into [a plaintiff’s] myriad constitutional and statutory claims [where] the
[plaintiff] lacks Article III standing . . . .’” Am. Freedom Law Ctr., 106 F. Supp. 3d at 108
(quoting Crow Creek Sioux Tribe v. Brownlee, 331 F.3d 912, 915 (D.C. Cir. 2003)). “This is
because a court may not ‘resolve contested questions of law when its jurisdiction is in doubt,’ as
‘[h]ypothetical jurisdiction produces nothing more than a hypothetical judgment—which comes
to the same thing as an advisory opinion, disapproved by [the Supreme] Court from the
beginning.’” Id. (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998)).
The irreducible constitutional minimum of standing contains three elements: (1) an injury
in fact; (2) causation; and (3) the possibility of redress by a favorable decision. Lujan, 504 U.S.
at 560–61. Furthermore, the doctrine of ripeness “shares the constitutional requirement of
standing that an injury in fact be certainly impending.” Chlorine Inst., Inc. v. Fed. R.R. Admin.,
718 F.3d 922, 927 (D.C. Cir. 2013) (quoting Nat’l Treasury Emps. Union v. United States, 101
F.3d 1423, 1427 (D.C. Cir. 1996)). “‘The party invoking federal jurisdiction bears the burden of
establishing’ standing,” Clapper v. Amnesty Int’l USA, __ U.S. __, __, 133 S. Ct. 1138, 1148
(2013) (citations omitted), and “each element must be supported in the same way as any other
matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the litigation,” Susan B. Anthony List, __ U.S. at
__, 134 S. Ct. at 2342 (quoting Lujan, 504 U.S. at 561). “In analyzing whether [a plaintiff] has
standing at the dismissal stage,” the Court must “assume that [the plaintiff] states a valid legal
claim and ‘must accept the factual allegations in the complaint as true.’” Info. Handling Servs.,
Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003) (citations omitted)
9
(quoting Sturm, Ruger & Co. v. Chao, 300 F.3d 867, 871 (D.C. Cir. 2002)).
Furthermore, an association seeking to establish standing to sue on behalf of its members
must further show that “(1) at least one of its members would have standing to sue in his own
right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither
the claim asserted nor the relief requested requires that an individual member of the association
participate in the lawsuit.” Chamber of Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011)
(quoting Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002)). Here, the focus of the parties’
dispute is whether any of the Named Washtech Members would have standing to sue in his own
right, therefore providing Washtech standing to pursue the claims it has asserted.
1. Washtech’s Standing to Challenge the 1992 OPT Program Rule
Washtech first challenges the Government’s 1992 OPT Program Rule, alleging in Count I
of its Complaint that DHS’s “policy of allowing non-student aliens to remain in the United States
and work on student visas exceeds DHS authority under 8 U.S.C. § 1101(a)(15)(F)(i).” Compl.
at ¶¶ 54–61. In moving to dismiss Count I of Washtech’s Complaint, the Government contends
that Washtech “fails to satisfy any element of Article III standing as to its challenge to the 1992
[OPT Program] Rule.” Gov’t’s Mem. at 34–35 (“[Washtech] has not identified a single member
suffering a cognizable, let alone redressable, injury caused specifically by the pre-2008 OPT
program . . . .”). Washtech, in its opposition, fails to address the Government’s argument that it
lacks standing to challenge the 1992 OPT Program Rule. See generally Washtech’s Opp’n at
34–42 (addressing only the Government’s argument that its challenge to the 1992 OPT Program
Rule is time-barred, not the Government’s arguments that its challenge to the 1992 OPT Program
Rule is non-justiciable). Accordingly, the Court may treat the Government’s position regarding
Washtech’s lack of standing to pursue its challenge to the 1992 OPT Program Rule as conceded.
10
See Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, 284 F. Supp. 2d 15, 25 (D.D.C.
2003) (Walton, J.) (“It is well understood in this Circuit that when a plaintiff files an opposition
to a dispositive motion and addresses only certain arguments raised by the defendant, a court
may treat those arguments that the plaintiff failed to address as conceded.” (citations omitted)),
aff’d, 98 F. App’x 8 (D.C. Cir. 2004).
In any event, the Court concludes that Washtech has failed to establish “that at least one
identified member ha[s] suffered or would suffer harm” resulting from the 1992 OPT Program
Rule. Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009). In its Complaint, Washtech
represents that its named members applied for STEM jobs from April 2008 until March of 2016.
See Compl. ¶¶ 106–219. During that period of time, the 2008 OPT Program Rule was in effect
and remained in effect after August 12, 2015, when another member of this Court stayed vacatur
of the 2008 OPT Program Rule until DHS promulgated the 2016 OPT Program Rule, see
Washtech II, 156 F. Supp. 3d at 149, which DHS did not do until March 11, 2016, see 81 Fed.
Reg. 13,040. Therefore, the Court assumes that Washtech’s reliance on these job applications
from its named members implicates the OPT Program extension provided by the 2008 OPT
Program Rule, which is now defunct, and not the OPT Program established under the 1992 OPT
Program Rule. Notwithstanding this assumption, Washtech’s Complaint suggests that its named
members were unable to obtain the jobs for which they had applied because those jobs were
filled by beneficiaries of the extension provided by 2008 OPT Program Rule, rather than
beneficiaries of the original 1992 OPT Program Rule. See, e.g., Compl. ¶¶ 109–10, 138–40
(alleging that a named member applied for a STEM job with a particular employer followed by
the number of applications for OPT extensions made to the Citizenship and Immigration
Services for workers already employed by that employer).
11
Consequently, the Government correctly notes that “[n]othing in [Washtech’s] Complaint
articulates factual matter connecting any alleged injury to the [1992] OPT [P]rogram.” Gov’t’s
Mot. at 35. Thus, because Washtech failed to address the Government’s argument that its claims
regarding the 1992 OPT Program Rule are non-justiciable, and because Washtech has not
identified a member of its association who has suffered any injury arising from the 1992 OPT
Program and who would have standing to sue in his or her own right, Washtech does not have
standing to challenge the 1992 OPT Program Rule on behalf of its members. 3 Accordingly, the
Court must dismiss Count I of Washtech’s Complaint. 4
2. Washtech’s Standing to Challenge the 2016 OPT Program Rule
For Article III purposes, the injury-in-fact requirement “helps to ensure that the plaintiff
has a ‘personal stake in the outcome of the controversy.’” Susan B. Anthony List, __ U.S. at __,
134 S. Ct. at 2341 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). “An injury sufficient to
satisfy Article III must be concrete and particularized and actual or imminent, not conjectural or
3
The parties devote a significant portion of their submissions on whether Washtech’s challenge to the 1992 OPT
Program Rule is time-barred by the six-year statute of limitations period provided by 28 U.S.C. § 2401(a), or is
exempt from this statute of limitations period based on the reopening doctrine, which permits pursuit of an otherwise
time-barred challenge to a prior rule if “the agency has undertaken a serious, substantive reconsideration of the
existing rule . . . [or] substantively chang[ed it].” Mendoza v. Perez, 754 F.3d 1002, 1019 n.12 (D.C. Cir. 2014)
(internal quotation marks and citation omitted); see also Washtech’s Opp’n at 34–42; Gov’t’s Reply at 15–18.
Having concluded that Washtech does not have standing to challenge the 1992 OPT Program Rule, the Court deems
it unnecessary to assess whether DHS’s promulgation of the 2016 OPT Program Rule substantively changed the
1992 OPT Program Rule, such that it reopened the statute of limitations to challenge the 1992 OPT Program Rule.
4
Washtech argues that “[a]n order dismissing Washtech’s challenge to the entire OPT program would be
inconsistent with the [District of Columbia] Circuit’s holding in Washtech II that the issues with the 2008 OPT
[Program] Rule are moot.” Washtech’s Opp’n at 42. In other words, Washtech claims that “[i]f [it] can only
challenge the provisions of the 2016 OPT [Program] Rule (and not the entire policy of authorizing guest[-]workers
on F-1 student visas), the only thing [it] can accomplish in this action is to invalidate the 2016 OPT [Program]
Rule.” Id. Therefore, Washtech contends that “[v]acating the 2016 OPT [Program] Rule would then restore the
regulatory scheme that was previously in place: the 2008 OPT [Program] Rule that the [District of Columbia]
Circuit held was moot.” Id. However, this is not so because the Circuit, in dismissing the appeal of Washtech II as
moot, stated that “the 2008 [OPT Program] Rule is no longer in effect.” 650 Fed. App’x at 14. Thus, invalidating
the 2016 OPT Program Rule would not leave in effect the 2008 OPT Program Rule, as that rule no longer exists;
rather, the 1992 OPT Program Rule would remain in effect. Accordingly, the Court finds that this argument
advanced by Washtech has no merit.
12
hypothetical. An allegation of future injury may suffice if the threatened injury is certainly
impending, or there is a substantial risk that the harm will occur.” Id. (citations and quotations
omitted). Furthermore, there must be “a sufficient causal connection between the injury and the
conduct complained of, and [ ] a likelihood that the injury will be redressed by a favorable
decision.” Id. (internal quotation marks and citation omitted).
To demonstrate standing to challenge the 2016 OPT Program Rule, Washtech alleges that
its named members have suffered the following five injuries: (1) a deprivation of “procedural
right[s] to notice and comment [required by the APA],” Compl. ¶ 88, (2) “discrimination because
[the 2016 OPT Program Rule] requires employers to provide mentoring programs to OPT
participants that are not available to Washtech members,” id. ¶ 89, (3) “unfair competition with
foreign workers” due to taxation differences between the H-B1 visa program and the F-1 visa
program, id. ¶ 87, (4) a deprivation of “statutory labor protective arrangements,” id. ¶ 85, and (5)
“increased competition [between] Washtech [m]embers [and] foreign workers,” id. ¶ 86.
Additionally, Washtech contends that these injuries are traceable to the 2016 OPT Program Rule
and are redressable by a favorable decision from the Court. See generally Compl. The Court
will address each of Washtech’s alleged injuries to its named members in turn.
a. Deprivation of Procedural Rights Injury
Washtech alleges that “DHS . . . violated [its] procedural rights . . . by failing to put the
question of whether the OPT [P]rogram should be expanded beyond a year to notice and
comment.” Compl. ¶ 226. The Government argues that Washtech’s allegation is flawed because
it has not “establish[ed] an injury-in-fact flowing from the 2016 [OPT Program] Rule under the
procedural injury doctrine,” and because “DHS explicitly sought notice and comment on
precisely this issue, and many commenters commented on exactly this issue, including
13
[Washtech’s] two counsel in this case.” Gov’t’s Mem. at 32 (citing 80 Fed. Reg. at 63,382,
63,385, 63,394).
“Where [a] plaintiff[ ] allege[s] [an] injury resulting from [the] violation of a procedural
right afforded to [him or her] by statute and designed to protect [his or her] threatened concrete
interest, the courts relax—while not wholly eliminating—the issues of imminence and
redressability but not the issues of injury in fact or causation.” Ctr. for Law & Educ. v. Dep’t of
Educ., 396 F.3d 1152, 1157 (D.C. Cir. 2005). Therefore, a plaintiff will “have standing only if
. . . (1) the government violated [his or her] procedural rights designed to protect [his or her]
threatened concrete interest, and (2) the violation resulted in injury to [his or her] concrete,
particularized interest.” Id.; see also Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 664–65 (D.C.
Cir. 1996) (“[A] procedural-rights plaintiff must show not only that the defendant’s acts omitted
some procedural requirement, but also that it is substantially probable that the procedural breach
will cause the essential injury to the plaintiff’s own interest.”).
Washtech stumbles at the outset in its attempt to establish a procedural injury because it
has “failed to show that a procedural right sufficient for standing has been violated.” Ctr. for
Law & Educ., 396 F.3d at 1157. Washtech cannot genuinely demonstrate that DHS omitted or
failed to subject the question of whether the OPT Program should be expanded beyond twelve
months to notice and comment because DHS explicitly submitted this question for notice and
comment. See 80 Fed. Reg. at 63,385–86 (explaining the proposed increase of the STEM OPT
extension period to twenty-four months, requesting “public comment on the proposed
[twenty-four]-month STEM OPT extension,” and noting a “particular[ ] interest[ ] in public input
regarding whether [twenty-four] months is the appropriate duration . . . or whether a shorter or
longer duration is preferable, and why”).
14
Despite this critical oversight, Washtech argues that “DHS’s reliance in the 2016 OPT
[Program] Rule on its conclusions made without public notice and comment in the 2008 OPT
[Program R]ule deprived Washtech of its procedural right to proper public notice and comment.”
Washtech Opp’n at 19–20 (citing Haw. Longline Ass’n v. Nat’l Marine Fisheries Serv., 281 F.
Supp. 2d 1, 37 (D.D.C. 2003) for the proposition that “[i]f an agency relies on substantive
conclusions made in a rule vacated for failure to give notice and comment in subsequent
rulemaking, it deprives the plaintiff of its procedural rights.”). However, in Haw. Longline
Ass’n, another member of this Court held that an agency’s subsequent rule was arbitrary and
capricious because the rule “rested on the conclusions of the vacated and unlawful [prior rule]
without reevaluating the merits of its analysis.” 281 F. Supp. 2d at 31. Here, DHS did not rely
on its conclusions regarding the prior 2008 OPT Program Rule. Rather, as it relates to the
question of whether the OPT Program should be expanded beyond twelve months, the 2008 OPT
Program Rule permitted an extension of seventeen months, whereas the 2016 OPT Program Rule
provides for a twenty-four month extension, which was adopted after consideration of numerous
comments. See 81 Fed. Reg. at 13040. Consequently, because Washtech is unable to
demonstrate that DHS denied Washtech’s procedural right to notice and comment, and because
DHS did not rely on its conclusions regarding the prior 2008 OPT Program Rule, the Court finds
that Washtech has not demonstrated a cognizable injury caused by the deprivation of a
procedural right sufficient to confer standing to challenge the 2016 OPT Program Rule.
b. Employment Discrimination Injury
Additionally, Washtech alleges that its members face employment discrimination because
the “2016 OPT [Program] Rule requires employers and universities to provide foreign workers
under the OPT [P]rogram mentoring programs without requiring such programs be made
15
available to Washtech members and other American workers,” and because “employers seek[ ]
OPT workers to the exclusion of Americans.” Compl. ¶ 224–25. The Government responds that
Washtech’s members do not have a “legally protected interest in receiving mentoring programs
simply because someone else in the population benefits from such programs.” Gov’t’s Mem. at
30 (internal quotation marks omitted) (citing Lujan, 504 U.S. at 560). The Government also
argues that “the alleged illegal acts of third parties do not create Article III standing to challenge
a rule that does not permit the acts to occur.” Id. at 31. The Court agrees with the Government.
Washtech’s “mere assertion that something unlawful benefited [its] competitor[s],”
Already, LLC v. Nike, Inc., __ U.S. __, __, 133 S. Ct. 721, 731 (2013) (citations omitted), and
allegedly constitutes employment discrimination is not sufficient to demonstrate a legal
cognizable injury that is particularized and concrete, see id. Nonetheless, Washtech asserts that
“the 2016 OPT [Program] Rule effectively mandates disparate treatment for American workers”
because “DHS did not require that employers make the same [training] programs available to
American workers.” Washtech’s Opp’n at 20. However, the theory that “a market participant is
injured for Article III purposes whenever a competitor benefits from something allegedly
unlawful . . . [is] a boundless theory of standing” that has “never [been] accepted.” Nike, Inc.,
__ U.S. at __, 133 S. Ct. at 731. This Court therefore declines this theory of standing now. 5
Furthermore, in promulgating the 2016 OPT Program Rule, DHS received several
5
Washtech cites various cases for the proposition that “disparate treatment is an injury in fact.” Washtech’s Opp’n
at 21 (citing Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993);
Davis v. Guam, 785 F.3d 1311 (9th Cir. 2015); Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786 (4th Cir.
2004); Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991)). But, Washtech’s reliance
on these cases is of no avail because standing in each of those cases “was based on an injury more particularized and
more concrete than the mere assertion that something [purportedly] unlawful benefited the plaintiff’s competitor.”
Nike, Inc., __ U.S. at __, 133 S. Ct. at 731. Moreover, each of the cases cited involved the alleged denial of equal
protection in violation of the Equal Protection Clause of the United States Constitution. In this case, Washtech does
not assert an equal protection violation, but rather claims that the 2016 OPT Program Rule is arbitrary and
capricious because it “requires employers to provide foreign guest-workers OPT mentoring programs without
requiring that such program be provided to American workers.” Compl. ¶ 82.
16
comments which suggested that the 2016 OPT Program Rule’s Training Plan “would induce
employers and universities to discriminate against [United States] workers” and would also
“discriminate against [United States] citizen and lawful permanent resident students because it
would not require employers to offer an identical ‘program’ to such students.” 81 Fed. Reg. at
13097. In response, DHS noted that the Training Plan established by the 2016 OPT Program
Rule “requires an employer to certify that the training conducted pursuant to the plan complies
with all applicable Federal and State requirements relating to employment.” 81 Fed. Reg. at
13098. Also, DHS stated that
[n]either the rule nor the Training Plan . . . requires or encourages employers to
exclude any of their employees from participating in training programs. And
insofar as an employer may decide to offer training required by the regulation only
to STEM OPT students, doing so does not relieve that employer of any culpability
for violations of . . . any . . . federal or state law related to employment. Moreover,
the training plan requirement is not motivated by any intention on the part of DHS
to encourage employers to treat STEM OPT students preferentially. Rather DHS
is requiring the Training Plan to obtain sufficient information to ensure that any
extension of F-1 student status under this rule is intended to augment the student’s
academic learning through practical experience and equip the student with a
broader understanding of the selected area of study.
81 Fed. Reg. at 13098. Thus, contrary to Washtech’s assertion, see Washtech’s Opp’n at 20, the
Court does not find that the 2016 OPT Program Rule “mandates disparate treatment for
American workers vis-à-vis OPT [Program] guest[-]workers by requiring the latter to receive the
benefit of mentoring,” id. Accordingly, the Court does not find Washtech’s allegation of
employment discrimination to constitute an injury sufficient to confer standing to challenge the
2016 OPT Program Rule.
c. Unfair Competition Injury
Washtech also asserts that its “members suffer an injury in fact from the OPT regulations
because they create unfair competition from alien guest[-]workers.” Washtech’s Opp’n at 17
17
(citing Compl. ¶ 87). Specifically, Washtech asserts that “[a]liens on F-1 visas are classified as
[n]on-[r]esident [a]liens so that they and their employers do not pay Medicare and Social
Security taxes as required for Washtech members [and t]his taxation treatment makes workers on
OPT inherently cheaper to employ than Washtech members.” Compl. ¶¶ 220–21. The
Government argues in response that “it is [the] specific, explicit Acts of Congress, not the 2016
Rule, which create[] any differential tax treatment,” Gov’t’s Reply at 12, and such third party
acts are not sufficient to confer Washtech standing to challenge the 2016 OPT rule, see Gov’t’s
Mem. at 27–28. The Court agrees.
“[T]he Supreme Court has made clear that a plaintiff’s standing fails where it is purely
speculative that a requested change in government policy will alter the behavior of regulated
third parties that are the direct cause of the plaintiff’s injuries.” Nat’l Wrestling Coaches Ass’n
v. Dep’t of Educ., 366 F.3d 930, 938 (D.C. Cir. 2004), abrogated on other grounds by Perry
Capital LLC v. Mnuchin, 848 F.3d 1072 (D.C. Cir. 2017). For instance, in Simon v. Eastern
Kentucky Welfare Rights Organization, the plaintiffs, which were organizations that represented
the interests of low-income individuals, challenged an IRS “Revenue Ruling [that] allow[ed]
favorable tax treatment to a nonprofit hospital that offered only emergency-room services to
indigents.” 426 U.S. 26, 28 (1976). In holding that the plaintiffs lacked standing, the Supreme
Court concluded that the regulated hospitals, not the IRS Revenue Ruling, caused the plaintiffs’
asserted injury of being denied access to certain hospital services. See id. at 40–46. The Court
also determined that the plaintiffs’ theory that the IRS’s policy encouraged hospitals to provide
fewer services to indigents was “speculative [as to] whether the desired exercise of the court’s
remedial powers . . . would result in the availability to [the plaintiffs] of such services.” Id.
at 43.
18
Similarly, Washtech’s “unadorned speculation,” id. at 44, that DHS’s 2016 OPT Program
Rule creates unfair competition because of the taxation differences between foreign labor
employed under the F-1 visa provision and domestic labor is too speculative to confer Washtech
standing. Washtech argues that its “members do not have to show any job loss or that they
would have (or might have) obtained a job absent this unequal [tax] treatment. [Rather, it
contends that it] only needs to demonstrate that DHS’s rule creates unequal treatment, which the
unequal rates of taxation plainly provides.” Washtech’s Opp’n at 18 (citing Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995)). However, Washtech’s reliance on Pena as
support for its position is misplaced. In Pena, the plaintiff argued that “the Federal
Government’s practice of giving general contractors on Government projects a financial
incentive to hire subcontractors controlled by ‘socially and economically disadvantaged
individuals,’ and in particular, the Government’s use of race-based presumptions in identifying
such individuals,” was unconstitutional under the Fifth Amendment’s Due Process and Equal
Protection Clauses. 515 U.S. at 204. The Supreme Court noted that the plaintiff’s “claim that
the Government’s use of subcontractor compensation clauses denies it equal protection of the
laws of course alleges an invasion of a legally protected interest, and it does so in a manner that
is ‘particularized’ as to [the plaintiff].” Id. at 211 (“The injury in cases of this kind is that a
discriminatory classification prevents[s] the plaintiff from competing on an equal footing. The
aggrieved party need not allege that he would have obtained the benefit but for the barrier in
order to establish standing.” (internal quotation marks and citations omitted)). Here, Washtech
has not alleged any equal protection or due process violations, and it has not alleged that the
2016 OPT Program Rule provides financial incentives to employers to discriminate based on
race or some other impermissible form of discrimination. See Compl. ¶¶ 220–23. Rather,
19
Washtech asserts that the taxation treatment for F-1 visas “makes workers on OPT inherently
cheaper to employ than Washtech members.” Id. ¶ 221. Thus, because the facts in Pena are not
parallel to the facts here, and because the interest at issue in Pena—the constitutional prohibition
against racial discrimination—greatly exceeds Washtech’s concerns, Pena does not support
Washtech’s proposition that it only needs to demonstrate that its members suffer unequal
treatment to show an injury in fact sufficient for standing.
Washtech also contends that the tax differences stemming from the 2016 OPT Program
Rule create a “powerful incentive for employers to violate the discrimination provisions of the
[Immigration and Nationality Act (the ‘INA’)],” Washtech’s Opp’n at 19, and to “place
[unlawful] job advertisement[s] seeking alien guest[-]workers on the OPT [P]rogram to the
exclusion of American workers,” id. at 18. However, nothing in the 2016 OPT Program Rule
“permits or authorizes,” Nat’l Wrestling Coaches Ass’n, 366 F.3d at 940, employers to
discriminatorily act in violation of the INA, see generally 81 Fed. Reg. at 13,040. In any event,
Washtech’s position is flawed because the 2016 OPT Program Rule does not itself create the
unequal tax treatment that Washtech identifies. As the Government correctly notes, Congress
enacted the tax exemptions for F-1 visa holders more than fifty years before DHS implemented
the OPT Program. See Gov’t’s Mem at 27–28. Thus, Washtech cannot demonstrate that its
alleged unfair competition injury was caused by or is traceable to the 2016 OPT Program Rule,
or that a favorable decision by this Court invalidating the 2016 OPT Program Rule would redress
its alleged injury, as the taxation treatment for F-1 visa holders would still remain. As the
Supreme Court has noted, “the ‘case or controversy’ limitation of [Article] III still requires that a
federal court act only to redress [an] injury that fairly can be traced to the challenged action of
the defendant, and not injury that results from the independent action of some third party not
20
before the court.” Simon, 426 U.S. at 41–42.
Simply, Washtech invites the Court to speculate as to the “myriad [of] economical,
social, and political realities,” Arpaio v. Obama, 797 F.3d 11, 21 (D.C. Cir. 2015), cert. denied,
136 S. Ct. 900 (2016), reh’g denied, 136 S. Ct. 1250 (2016), relating to the complexities of the
tax code that either benefits or disadvantages employers, 6 how third party employers select and
hire employees, and whether these third party employers are engaging in unlawful actions. The
Court declines that invitation, as it is too speculative and attenuated for the Court to infer that
Washtech members have suffered an injury resulting from unfair competition due to differential
taxation treatment purportedly created by the 2016 OPT Program Rule. Accordingly, the Court
concludes that Washtech does not have standing based on the alleged injury of unfair
competition to challenge the 2016 OPT Program Rule.
d. Deprivation of Statutory Labor Protective Arrangements Injury
Washtech next alleges that “DHS’s OPT regulations allow college-educated labor in
computer fields to work in the job market without complying with the statutory protections under
the H-1B program, denying [its] members [ ] those protections.” Compl. ¶ 97. Through its
opposition, Washtech appears to argue that it has union status standing due to the loss of
labor-protective arrangements for its members to challenge the 2016 OPT Program Rule. See
Washtech’s Opp’n at 9–10, 13. The Government contends that the cases Washtech relies upon
are distinguishable from the facts in this case because “they arise in the context of
labor-protective arrangements governing unions and the Interstate Commerce Commission, a
6
In the 2016 OPT Program Rule, DHS noted the receipt of voluminous comments regarding taxation issues. See 81
Fed. Reg. at 13056–58. Among those comments were observations that “any employer savings related to tax laws
are at least in part offset by administrative costs, legal fees, and staff time related to securing the authority under
[United States] immigration law to employ the foreign-born worker,” and that some F-1 visa holders “eligible for
STEM OPT extensions, may not be exempt [from taxes] because they have already been in the United States for
parts of five calendar years.” Id. at 13058.
21
unique body of administrative law inapplicable here.” Gov’t’s Reply at 11 (noting that
Washtech failed to cite any cases applying this reasoning to the INA). The Government also
argues that
the fact that the H-1B visa provision, which governs the admission of
nonimmigrants for employment purposes, contains explicit domestic labor
protections, in no way creates a labor protection requirement for a separate,
unrelated statute, the F-1 provision, which contains no such explicit requirement,
and governs the entire different statutory purpose of the admission of
nonimmigrant[ ] for educational purposes.
Id. at 11–12 (citations omitted). 7
Here, Washtech has not met the standard required to establish an injury to itself or its
members sufficient for Article III purposes. Washtech contends that “it is the denial of the
statutory protection itself that is the injury in fact, not the secondary question of whether that
denial causes a harm, such as being hired for a specific job or winning a contract.” Washtech’s
Opp’n at 10; see also id. at 11 (“The injury here is that DHS OPT regulations deprive Washtech
members—and American STEM workers generally—of numerous statutory protections that
should rightly be applied to such foreign labor.”). As support, Washtech relies upon Warth v.
Seldin, 422 U.S. 490, 514 (1975), for the proposition that “Congress may create a statutory right
or entitlement the alleged deprivation of which can confer [judicial] standing to sue even where
the plaintiff would have suffered no judicially cognizable injury in the absence of [a] statute.”
Id. at 10. In addition, Washtech cites Brotherhood of Locomotive Engineers v. United States,
101 F.3d 718 (D.C. Cir. 1996), which observed that this Circuit has “repeatedly held that the loss
7
Additionally, the Government argues that Washtech’s “claim alleging deprivation of alleged statutory protections
‘goes to the merits,’ and cannot serve as the basis of [Washtech’s] injury theory” for the purposes of establishing
standing. Gov’t’s Reply at 10 (citing Sherley v. Sebelius, 610 F.3d 69, 73–74 (D.C. Cir. 2010)). However, in
noting this limitation, the Circuit was referring to “[t]he requirement of a protected competitive interest.” Sherley,
610 F.3d at 72. Thus, because Washtech’s allegations of denial of statutory protections is not synonymous with the
requirement of a protected competitive interest, it is unnecessary for the Court to consider this argument.
22
of labor-protective arrangements may by itself afford a basis for standing.” Id. at 9 (quoting
Bhd. of Locomotive Eng’rs, 101 F.3d at 724 (noting that “as long as there is a reasonable
possibility that union members will receive and benefit from labor-protective arrangements, the
loss of those arrangements stemming from [government action] provides a sufficient basis for
union standing”)); see also id. at 10 (citing Nat’l Treasury Emps. Union v. Chertoff, 452 F.3d
839, 852–55 (D.C. Cir. 2006), and Simmons v. Interstate Commerce Comm’n, 934 F.2d 363,
367 (D.C. Cir. 1991)).
The Court finds that Washtech’s reliance on these two cases is to no avail because the
circumstances in both Seldin and Brotherhood of Locomotive Engineers are distinguishable from
the facts presented in this case. In Seldin, the plaintiffs challenged a “town’s zoning ordinance
. . . [that] effectively excluded persons of low and moderate income from living in the town, in
contravention of” their constitutional rights. 422 U.S. at 493. Particularly, one of the
organizational plaintiffs argued that a select group of its members were “deprived of the benefits
of living in a racially and ethnically integrated community . . . as a result of the persistent pattern
of exclusionary zoning practiced,” and therefore, “such deprivation is sufficiently palpable injury
to satisfy the Art[icle] III case or controversy requirement.” Id. at 512. The Supreme Court,
however, held that this organizational plaintiff did not have standing because it did “not assert on
behalf of its members any right of action under the 1968 Civil Rights Act.” Id. at 513. And,
although the Court “observed [that] Congress may create a statutory right or entitlement the
alleged deprivation of which can confer standing to sue even where the plaintiff would have
suffered no judicially cognizable injury in the absence of [the] statute,” the Court observed that
“[n]o such statue [was] applicable.” Id. at 514.
Also, in Brotherhood of Locomotive Engineers, the union plaintiffs “petition[ed] for
23
review of three Interstate Commerce Commission decisions in which the Commission found it
lacked jurisdiction over several railroad transactions.” 101 F.3d at 719–20. At the outset, the
Circuit noted that “[t]he injury at issue is not the job loss resulting from the transactions, but
rather the loss of coverage by labor-protective arrangements flowing from the [Commission’s]
determination that the transactions fall outside its jurisdiction.” Id. at 723–24. In determining
that the union plaintiffs “ha[d] demonstrated [an] injury-in-fact” with respect to only two of the
Commission’s decisions, the Circuit concluded that “the labor-protective provisions at stake
[were] mandatory,” which “create[d] an extremely strong presumption that Union members
suffered a concrete and immediate injury when the [Commission] found it lacked jurisdiction.”
Id. at 724 (analyzing the effect of Simmons on the facts presented to the court). The Circuit also
determined that “because a reasonable possibility of job dislocation exits, labor-protective
arrangements would have been meaningful and valuable.” Id.; see also id. at 725 (“In
mandatory-protection cases, denial of jurisdiction necessarily entails a loss of labor protection; as
long as there is any reasonable possibility of economic dislocation that would make such labor
protection meaningful, workers who would have been protected suffer concrete and immediate
injury when the [Commission] refuses jurisdiction.”).
In this case, Washtech has not asserted any right of action under a statute established by
Congress that creates “a statutory right or entitlement the alleged deprivation of which can confer
standing,” Seldin, 422 U.S. at 514, nor has Washtech shown that there are “labor-protective
provisions at stake [that] are mandatory,” Bhd. of Locomotive Eng’rs, 101 F.3d at 724.
Washtech argues that “Congress established the H-1B visa program to admit college-educated
foreign labor, the very type of guest[-]worker labor allowed to enter the [United States] job
market under OPT.” Washtech’s Opp’n at 11. And, “[t]he H-1B visa program requires foreign
24
labor to respect domestic labor protections prescribed by Congress.” Id. (citations omitted).
According to Washtech, “the 2016 OPT [Program] Rule . . . allows alien guest[-]workers to enter
Washtech members’ job market without complying with the statutory protections established for
such labor.” Id. at 12; see also id. at 12 (“DHS’s cancellation of statutory protections (by using
the OPT [P]rogram to circumvent the labor protections under the H-1B program) confers
standing on those whom Congress intended to protect: American workers including [its]
members.”). But, while the H-1B visa program targets foreign labor already in the workforce,
Congress specifically created the F-1 visa program as an additional program that “authorizes
admission [into the United States] to bona fide students, who are solely pursuing a course of
study, at an approved academic institution that will report termination of attendance.” Id. at 1
(citing 8 U.S.C. § 1101(a)(15)(F)(i)). In so doing, Congress elected not to include language
providing for domestic labor protections or to condition entry into the United States on the entry
having no impact on domestic labor. See § 1101(a)(15)(F). In fact, throughout the long history
of the F-1 visa program, including amendments and revisions, Congress has repeatedly declined
to include any provision that requires analogous domestic labor protections. Simply, Washtech
cannot compel the Court to infer that Congress intended to provide domestic laborers, such as
Washtech’s members, labor protections under the F-1 visa program, when Congress itself had
multiple opportunities to do so, but chose not to. Thus, the Court finds that the actual complaint
of Washtech’s alleged deprivation of statutory protections injury is not against DHS, but rather
against Congress, who is not a party in this case. 8
8
Washtech also cites Clinton v. New York, 524 U.S. 417, 433 (1998) as additional support for its proposition that
the deprivation of a statutory right confers standing. See Washtech’s Opp’n at 11–12. In Clinton, the Court noted
its prior ruling which held that plaintiffs have standing when the injury alleged is harm resulting from the
deprivation of a benefit in the negotiation process and “not the ultimate inability to obtain the benefit.” 524 U.S. at
433 n.22 (citation omitted). However, the Court finds that Clinton does not weigh in Washtech’s favor because
Washtech has not alleged, and is most likely unable to show, that its members engage in any negotiation processes
with respect to applying for and obtaining available jobs in the STEM labor market.
25
Consequently, Washtech has not demonstrated that it has a statutory right or entitlement
to statutory labor protections or that any such labor protection provisions are mandatory under
the F-1 visa provision. Therefore, the Court concludes that Washtech has not demonstrated that
its members have suffered an injury-in-fact based on alleged deprivation of statutory protections
sufficient to confer standing to challenge the 2016 OPT Program Rule.
e. Increased Competition Injury
Finally, Washtech asserts that its members have suffered an injury-in-fact due to
increased competition because the 2016 OPT Program Rule “allows additional foreign workers
to compete with [its] members that would not be in the job market but for DHS regulations.”
Compl. ¶ 98. Invoking the requirements for the doctrine of competitor standing, the Government
argues that Washtech fails to show an actual or imminent injury resulting from the 2016 OPT
Program Rule because its allegations “are backward looking, focusing exclusively on events that
precede the existence of the 2016 [OPT Program] Rule, that arise entirely under the now-defunct
2008 regime.” Gov’t’s Reply at 4. The Government also argues that Washtech’s named
members are not “direct and current” competitors with STEM OPT recipients because, as
employees with over thirty years of experience in the STEM field, they do not compete with
students applying for entry-level jobs. Gov’t’s Reply at 3.
“The doctrine of competitor standing addresses the first requirement [of standing] by
recognizing that economic actors ‘suffer [an] injury in fact when agencies lift regulatory
restrictions on their competitors or otherwise allow increased competition’ against them.”
Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010) (alterations in original) (quoting La.
Energy & Power Auth. v. Fed. Energy Regulatory Comm’n, 141 F.3d 364, 367 (D.C. Cir.
1998)). To establish competitor standing, a party in a particular market must “show an actual or
26
imminent increase in competition” in the relevant market, Sherley, 610 F.3d at 73; see also
Mendoza, 754 F.3d at 1011, and “demonstrate that it is a direct and current competitor whose
bottom line may be adversely affected by the challenged government action,” Mendoza, 754
F.3d at 1013 (quoting KERM, Inc. v. FCC, 353 F.3d 57, 60 (D.C. Cir. 2004) (emphasis in
original)); see also Arpaio, 797 F.3d at 23 (“Plaintiffs may claim predictable economic harms
from the lifting of a regulatory restriction on a ‘direct and current competitor,’ or regulatory
action that enlarges the pool of competitors, which will ‘almost certainly cause an injury in fact’
to participants in the same market. But [this Circuit] ha[s] not hesitated to find competitor
standing lacking where the plaintiff’s factual allegations raised only ‘some vague probability’
that increased competition would occur.” (internal citations omitted)).
Washtech asserts that its “injury in fact is the mere ‘exposure to competition’ created by
[the] regulatory actions.” Washtech’s Opp’n at 14 (citing Tozzi v. U.S. Dep’t of Health &
Human Servs., 271 F.3d 301, 308 (D.C. Cir. 2001)). And, Washtech notes that“[a] plaintiff does
not have to demonstrate specific lost sales to establish an injury in fact from increased
competition; only that the agency action permits a competitor to enter the market.” Id. Indeed,
“an individual in the labor market for [STEM] jobs would have standing to challenge [the]
Department of [Homeland Security’s] rules that lead to an increased supply of labor—and thus
competition—in that market.” Mendoza, 754 F.3d at 1011 (discussing prior case law). It cannot
be credibly argued that DHS’s 2016 OPT Program Rule has not led to an influx of employees in
the STEM labor market, and thus, an increase in competition. See Press Release, Impact Report:
100 Examples of President Obama’s Leadership in Science, Technology, and Innovation, The
White House (June 21, 2016), https://www.whitehouse.gov/the-press-office/2016/06/21/impact-
report-100-examples-president-obamas-leadership-science (last visited Jan. 26, 2016) (noting
27
that, as of June 2016, DHS estimated that there were 34,000 STEM students already participating
in the OPT Program as a result of the now-defunct 2008 OPT Program Rule and expected an
estimated growth to 92,000 participants within ten years). 9 Therefore, Washtech does have
standing to challenge the 2016 OPT Program Rule under the doctrine of competitor standing, if it
can identify members who are “direct and current competitor[s]” in the STEM labor market who
“may be adversely affected by” the 2016 OPT Program Rule. Mendoza, 754 F.3d at 1011.
To this end, Washtech argues that its named members are direct and current competitors
with beneficiaries of the 2016 OPT Program Rule because, even though currently employed,
they remain “active participants in the programming and system administration job market.”
Washtech’s Opp’n at 23. Nonetheless, the Government contends that Washtech “provide[s] no
basis for concluding [that its named members] ‘personally compete[] in the same arena’ as
beneficiaries of the 2016 [OPT Program] Rule, . . . let alone that they do so directly and
currently.” Gov’t’s Mem. at 16 (citations omitted) (first alteration in original). In assessing this
issue, the Court finds the District of Columbia Circuit’s decision in Mendoza to be particularly
instructive.
In Mendoza, the Circuit found that former sheepherders had standing to challenge
Department of Labor regulations affecting the wages and working conditions in the herding
market because the former herders sought to return to the market, but were prevented from doing
so by increased competition from foreign labor as a result of the regulations. See 754 F.3d at
9
“In determining whether a complaint states a claim, the court may consider the facts alleged in the complaint,
documents attached thereto or incorporated therein, and matters of which it may take judicial notice.” Abhe &
Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (citation omitted). And, “public records and
government documents available from reliable sources,” Detroit Int’l Bridge Co. v. Gov’t of Canada, 133 F. Supp.
3d 70, 85 (D.D.C. 2015) (citing Hamilton v. Paulson, 542 F. Supp. 2d 37, 52 n.15 (D.D.C. 2008), rev’d on other
grounds, 666 F.3d 1344 (D.C. Cir. 2012)), are “among the documents ‘subject to judicial notice on a motion to
dismiss,’” Latson v. Holder, 82 F. Supp. 3d 377, 382 (D.D.C. 2015) (citation omitted). Accordingly, the Court takes
judicial notice of this governmental document.
28
1011–14. In its assessment, the Circuit concluded that the plaintiffs, who “averred [that] they
[were] experienced and qualified herders” and “ha[d] not worked as herders since 2011 and may
not have applied for specific herder jobs since that time,” made a clear affirmation of “their
desire to work as herders and . . . their intention to do so if wages and working conditions
improve.” Id. at 1013. The Circuit noted that
“[t]he plaintiffs are not removed from the herder labor market simply because they
do not currently work as herders and have not filled out formal job applications. A
person can involve himself in a job market by means other than submitting formal
applications. Job searches are not such rigid processes. The plaintiffs continue to
monitor the herder job market with the intention of applying for work in the
industry if conditions improve . . . . And because the plaintiffs retained ties to the
industry, it was reasonable for them to conclude that formally applying for jobs
would be futile when they would not accept a job offering the prevailing wage and
working conditions.
Id. at 1014 (internal citations omitted). In sum, the Circuit concluded that the Mendoza plaintiffs
“presented more than ‘general averments’ and ‘conclusory allegations.’” Id. Rather, they
“attested to specific experience that qualifies them to work as herders; the particular working
conditions that led them to leave the industry; the specific wages and conditions they would
require to accept new employment as workers; [and] the manner in which they have kept abreast
of conditions in the industry.” Id.
In light of the Circuit’s reasoning in Mendoza, the Court finds for the following reasons
Washtech’s allegations, albeit not in significant depth, sufficient to demonstrate that its named
members are in direct and current competition with beneficiaries of the 2016 OPT Program Rule.
In its Complaint, Washtech proffers evidence of its named members applying for STEM jobs and
evidence of those employers seeking extensions of its current OPT employees. See Compl. ¶¶
106–219. But, unlike the plaintiffs in Mendoza, Washtech has not provided the Court with any
affidavits from its named members that indicate their involvement in the STEM labor market.
29
Nonetheless, Washtech asserts that its named members “are members of a labor union, . . . are
currently working in specific fields in which aliens with degrees under the 2016 OPT [Program]
Rule are authorized for extended work periods, and frequently apply for jobs in those fields.”
Washtech’s Opp’n at 22–23 (citing Compl. ¶¶ 106–209). Given the broad interpretation of what
amounts to participating in the relevant market under the Circuit’s decision in Mendoza, see 754
F.3d at 1013 (“We believe the district court took too narrow a view of what qualifies as
participating in the herding labor market.”), Washtech has clearly identified members that
actively participate in the STEM labor market, and therefore, are in direct and current
competition with beneficiaries of the 2016 OPT Program Rule.
Even on this record, the Government attempts to distinguish the facts in Mendoza from
those at issue in this case. The Government argues that the Mendoza plaintiffs “were ‘willing
and available to work as herders’ in the precise types of jobs foreign laborers had already taken
at depressed wages.” Gov’t’s Reply at 7 (quoting Mendoza, 754 F.3d at 1014). Washtech’s
named members, the Government continues, have more experience than entry-level STEM OPT
participants and thus, would not accept the same types of jobs. See id. at 6 (“[I]t is impossible to
conclude, even at the motion to dismiss stage, that three extremely experienced STEM workers
are in fact direct and current competitors with recent graduates of [United States] educational
program engaged in on-the-job training, either as STEM OPT participants, or as OPT
participants generally.” (footnote omitted)). But, even though the Circuit in Mendoza recognized
that the plaintiffs there were “experienced and qualified” and chose not to apply for sheep
herding jobs at the depressed wages and working conditions, it did not consider the plaintiffs’
experience level in assessing their “direct and current competitor” status in the sheep herding
labor market. 754 F.3d at 1013. The Government’s argument overextends the requirements
30
articulated in Mendoza, and taking Washtech’s factual allegations to be true, as the Court must at
this stage in litigation, it is clear from Washtech’s Complaint that its named members have
applied on multiple occasions for jobs at companies either specifically seeking OPT recipients
and/or filing OPT extensions on behalf of current employees. See, e.g., Compl. ¶¶ 109–10, 138–
40.
In addition, the Government argues that since Washtech’s named members were not
seeking employment as of the date of the Complaint, their “claims of past job applications do
‘nothing to establish a real and immediate threat that [Washtech’s members] would again be
[injured in the future.]’” Gov’t’s Mem. at 18 (quoting Los Angeles v. Lyons, 461 U.S. 95, 105
(1983)). Although the three named members were employed at the time, the Complaint
sufficiently alleges that all three remain members of the STEM job market, noting the temporary
nature of their work and the fact that their “job search is continuous,” such that they are
“constantly seeking new employment opportunities.” See, e.g., Compl. ¶¶ 107, 184. This is
directly parallel to the circumstances in Mendoza, which held that the plaintiffs were still
members of the sheep herding market because they “continue[d] to monitor the herder job
market with the intention of applying for work in the industry if conditions improve[d],” even
though they had not worked in or applied for positions in that market for several years. 754 F.3d
at 1014. The Circuit therefore considered the sheep herders’ current employment status (or lack
thereof) irrelevant to the standing inquiry. Id.
Washtech has also pleaded facts sufficient to establish causation and redressability. The
Government argues that “[n]othing in [Washtech’s] Complaint demonstrates that the 2016 [OPT
Program] Rule is responsible for [Washtech’s named] members’ underemployment,” Gov’t’s
Mem. at 22, which “can be attributed to [a] myriad [of] potential and interlocking causes,” such
31
as “their insufficient qualifications or skills, macroeconomic trends, increased industry demand
for entry-level rather than experienced computer programmers or other factors,” id. at 23. The
Government also argues that Washtech’s purported competitive injury is “unlikely to be
redressed by a favorable decision, asserting that invalidating the 2016 [OPT Program Rule]
would neither eliminate competition for computer jobs, nor guarantee improved economic
conditions or job opportunities.” Id.; see also Gov’t’s Reply at 9–10 (citing cases for its
proposition that Washtech’s traceability and redressability arguments “depend on a ‘chain of
events’ of speculative, future conduct by third parties”).
However, in the competitor standing context, the causation requirement is satisfied when
an agency allows competitors into the plaintiff’s market, and the redressability requirement is
met when vacating a regulation would remove those competitors. See Honeywell Intern. Inc. v.
EPA, 374 F.3d 1363, 1369 (D.C. Cir. 2004) (rejecting agency’s argument that traceability was
not satisfied because “doing so would require speculation about the purchasing decisions of third
parties not before the court”), withdrawn in part on other grounds, 393 F.3d 1315 (D.C. Cir.
2005); see also Bristol-Myers Squibb Co. v. Shalala, 91 F.3d 1493, 1499 (D.C. Cir. 1996)
(finding the traceability requirement satisfied because, under the competitor standing doctrine,
the plaintiff’s injury was “exposure to competition as a result of the [agency’s action]”). Here,
Washtech has alleged that the 2016 OPT Program Rule permits increased competition by foreign
labor in the STEM labor market where its named members compete, see Washtech’s. Opp’n. at
17, and that “a favorable decision from the [C]ourt would remove the [increased competition],”
Compl. ¶ 104. Consequently, the Court does not find that Washtech’s allegations regarding
traceability and redressability are speculative, as the 2016 OPT Program Rule undoubtedly
increases competition in the STEM labor market. See Bristol-Myers Squibb Co., 91 F.3d at
32
1499 (noting that the focus for the causation element of standing as it relates to the plaintiff’s
injury for competitor standing purposes was not the “lost sales, per se,” rather the focus is on the
increased “exposure to competition”). Accordingly, the Court finds that Washtech has satisfied
all three elements required for constitutional standing as it relates to its alleged injury due to
increased competition to challenge the 2016 OPT Program Rule. See Permapost Prods., Inc. v.
McHugh, 55 F. Supp. 3d 14, 21–22 (D.D.C. 2014) (“[T]he [District of Columbia] Circuit has
found all three elements of standing to be met by plaintiffs where an agency . . . passed rules that
led to an increased number of market participants.” (citing Mendoza, 754 F.3d at 1010–12)).
B. Zone of Interests
Even though the Court has determined that Washtech has satisfied the constitutional
requirements for standing, the Court’s inquiry does not end here; the Court “must also inquire
whether [Washtech] fall[s] within the class of persons whom Congress has authorized to sue
under the [APA].” Mendoza, 754 F.3d at 1016. For this inquiry, the Court must decide
“whether ‘[Washtech’s] grievance . . . arguably fall[s] within the zone of interests protected or
regulated by the statutory provision or constitutional guarantee invoked in the suit.’” Id.
(quoting Bennett v. Spear, 520 U.S. 154, 162 (1997)); see also Lexmark Int’l, Inc. v. Static
Control Components, Inc., __ U.S. __, __, 134 S. Ct. 1377, 1387 (2014) (holding that although
“zone of interests” has traditionally been referred to as “prudential standing,” that “is a
misnomer,” and the proper analysis asks “whether ‘this particular class of persons ha[s] a right to
sue under this substantive statute.’” (quoting Ass’n of Battery Recyclers, Inc. v. EPA, 716 F.3d
667, 675–76 (D.C. Cir. 2013) (J. Silberman, concurring))). Although the parties agree that the
relevant statute is the Immigration and Nationality Act (the “INA”), see Gov’t’s Mem. at 37; see
also Washtech’s Opp’n at 26, they disagree on the precise provisions of the INA that can be
33
considered in making the zone of interests determination.
“[I]n considering whether [Washtech is] authorized to sue under [the applicable statute,
the Court] look[s] to whether [it] fall[s] within the zone of interests sought to be protected by the
substantive statute pursuant to which the Department of [Homeland Security] acted.” Mendoza,
754 F.3d at 1016. The zone of interests test “is not meant to be especially demanding,” as courts
“apply the test in keeping with Congress’s ‘evident intent’ when enacting the APA ‘to make
agency action presumptively reviewable.’” Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak, 567 U.S. 209, 132 S. Ct. 2199, 2210 (2012) (quoting Clarke v. Secs. Indus.
Ass’n, 479 U.S. 388, 399 (1987)). The Supreme Court has “often conspicuously included the
word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff,”
Lexmark Intern., Inc., __ U.S. at __, 134 S. Ct. at 1389, and “[t]he test forecloses suit only when
a plaintiff’s ‘interests are so marginally related to or inconsistent with the purposes implicit in
the statute that it cannot reasonably be assumed that Congress intended to permit the suit,’”
Patchak, 567 U.S. 209, 132 S. Ct. at 2199. In analyzing congressional intent, the District of
Columbia Circuit has looked to both the language of the specific statutory provision in question
and the broader history of the statute as a whole. See Int’l Union of Bricklayers & Allied
Craftsmen v. Meese, 761 F.2d 798, 804 (D.C. Cir. 1985) (finding the zone of interests test
satisfied where “the wording of the statute gives a clear indication of the interests which [the
challenged INA provision] was meant to protect . . . [and] [t]he background of the statute
reinforces this conclusion”); Mendoza, 754 F.3d at 1017–18 (finding the zone of interests test
satisfied upon review of the statutory language in question and the legislative history of the
INA).
The Government alleges that Washtech “fails to satisfy the zone of interest test with
34
respect to section 1101(a)(15)(F)(i)” of the INA relating to the F-1 visa status provision. Gov’t’s
Reply at 19. Specifically, the Government contends that the “protection of domestic workers
was not among Congress’s concern in enacting and re-enacting the F-1 status provision.”
Gov’t’s Mem. at 40 (quoting Programmers Guild, Inc. v. Chertoff, 338 Fed. App’x. 239, 244 (3d
Cir. 2009)). Washtech, however, contends that the protection of American workers is arguably
within the zone of interests of section 1101(a)(15)(F)(i), because DHS has recognized this
interest under this particular provision, see Washtech’s Opp’n at 27, and because Congress, the
Supreme Court, and several lower courts have recognized this interest in its assessment of the
INA, see id. at 28–30.
Washtech’s interest in protecting American workers is one that arguably falls within the
zone of interests protected by section 1101(a)(15)(F)(i), and therefore, Washtech has prudential
standing to challenge the 2016 OPT Program Rule. Broadly speaking, Washtech argues that
DHS used the F-1 visa provision in promulgating the 2016 OPT Program Rule to circumvent
Congressional restrictions imposed on H-1B visas. In its Complaint, Washtech asserts that the
2016 OPT Program Rule exceeds DHS’s authority because it “conflicts with the statutory
provisions of 8 U.S.C. §§ 1182(a)(5), 1182(n), 1184(a)(1), 1184(g), and 1127(a)(1)(C)(i),” which
impose limitations on H-1B visas, see Compl. ¶ 63; see also Washtech’s Opp’n at 26–27 (citing
Compl. ¶ 4). Despite these allegations, the Government seeks to confine Washtech’s allegations
solely to violations of the F-1 visa program. See Gov’t’s Mem. at 37–42. But, “[i]n determining
whether a petitioner falls within the ‘zone of interests’ to be protected by a statute, [the Court
can] not ‘look [only] at the specific provision said to have been violated in complete isolation[,]’
but rather in combination with other provisions to which it bears an ‘integral relationship.’”
Nat’l Petrochemical & Refiners Ass’n v. EPA, 287 F.3d 1130, 1127 (D.C. Cir. 2002) (quoting
35
Fed’n for Am. Immigration Reform, Inc. v. Reno (“FAIR”), 93 F.3d 897, 903 (D.C. Cir. 1996));
see also Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 179 (D.C. Cir. 2012). Therefore, it is proper
for the Court to examine the zone of interests protected by the H-1B visa provision also, and
there is little doubt that Washtech’s interest in protecting American workers is clearly within the
zone of interests of this visa provision and its related statutes. See 8 U.S.C. § 1182(n) (requiring
employer certification that the H-1B nonimmigrant will be paid prevailing market wages, that the
employer will provide working conditions for the nonimmigrant employee that will not adversely
affect working conditions for the other workers, and that there is not a strike at the location of the
employment); id. § 1184(g) (setting caps on the number of H–1B visas).
The Government contends that the H-1B visa provision and its related statutes are not
integrally related to the F-1 visa provision. See Gov’t’s Reply at 21–22 (opining that “[n]one of
these provisions [cited by Washtech] are related to section 1101(a)(15)(F)(i),” but are rather
“integrally related to each other”). As support for its position, the Government argues that
Congress had ample opportunities to subject the F-1 visa provision to the same domestic labor
protections as the H-1B visa provision, but elected not to, which “suggests ‘that protection of
domestic workers was not among Congress’s concerns in enacting and re-enacting the F-1 status
provision, and it tends to suggest that Congress [ ] was concerned with increasing the country’s
pool of available STEM workers.’” Id. at 24 (quoting Programmers, 338 Fed. App’x. at 244).
However, Congress’s election to not extend certain domestic labor protections provided to H-1B
visa holders to F-1 visa holders does not necessarily imply that the two statutory provisions are
not integrally related. Rather, a review of the codification scheme of the F-1 and H-1B visa
provisions’ and the class of individuals targeted by the two visa provisions suggests that they are
integrally related. As another member of this Court reasoned,
36
[t]he provisions are part of the same statute; indeed, they are contained within a
single subsection of the statute. Even more important than the statute’s codification
scheme, though, is the substantive relationship between the provisions. F-1 is
directed at students studying at an American academic institution, including
colleges and universities. H-1B is limited to individuals who have completed their
bachelor’s degree. As such, F-1 and H-1B perform the interlocking task of
recruiting students to pursue a course of study in the United States and retaining at
least a portion of those individuals to work in the American economy.
Washtech II, 156 F. Supp. 3d at 135 (internal citations omitted). The Court agrees with its
colleague’s analysis, and consequently, finds that the H-1B and the F-1 visa provisions are
integrally related, and thus, consideration of the zone of interests protected by the H-1B
provision is appropriate. Therefore, because Washtech’s interest of protecting American
workers arguably falls within the zone of interests protected by the H-1B provision, it has
prudential standing to challenge the 2016 OPT Program Rule.
C. Ripeness
In addition to challenging Washtech’s standing to contest the 2016 OPT Program Rule,
the Government contends that this “case is not fit for review because it requires too much
conjecture and speculation by the Court given [Washtech’s] sparse and unconvincing allegations
concerning injury that fail to allege any cognizable harm.” Gov’t’s Mem. at 33. The
Government also asserts that Washtech’s “challenge ‘depends on future events that may never
come to pass, or that may not occur in the form forecasted,’” Gov’t’s Reply at 6 n.5, and
therefore, Washtech’s “challenge is not ripe for adjudication,” Gov’t’s Mem at 32. In response,
Washtech argues that its “plead[ed] injuries occur at this very moment and the case is ripe for
review” because
the 2016 OPT [Program] Rule . . . has been allowing competitors into Washtech’s
market since, May 10, 2016. . . . Furthermore, the 2016 OPT [Program] Rule
explicitly authorizes aliens working prior to that date under the 2008 OPT
[Program] Rule’s [seventeen]-month extension to continue to work under the 2016
OPT [Program] Rule and to extend the work period to [twenty-four] months.
37
Washtech’s Opp’n at 22.
The ripeness doctrine, which “generally deals with when a federal court can or should
decide a case,” Am. Petroleum Inst. v. EPA, 683 F.3d 382, 386 (D.C. Cir. 2012), is “designed ‘to
prevent the courts, through avoidance of premature adjudication, from entangling themselves in
abstract disagreements over administrative policies, and also to protect the agencies from judicial
interference until an administrative decision has been formalized and its effects felt in a concrete
way by the challenging parties,’” Chlorine Inst., Inc., 718 F.3d at 927 (quoting Nat’l Park Hosp.
Ass’n v. U.S. Dep’t of Interior, 538 U.S. 803, 807–08 (2003)). “Part of the doctrine is subsumed
into the Article III requirement of standing, which requires a petitioner to allege inter alia an
injury-in-fact that is ‘imminent’ or ‘certainly impending.’” Am. Petroleum Inst., 683 F.3d at 386
(citations omitted); see also Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1427
(D.C. Cir. 1996) (“Ripeness, while often spoken of as a justiciability doctrine distinct from
standing, in fact shares the constitutional requirement of standing that an injury in fact be
certainly impending.”). “Even if a case is ‘constitutionally ripe,’ though, there may also be
‘prudential reasons for refusing to exercise jurisdiction.’” Am. Petroleum Inst., 683 F.3d at 386
(quoting Nat’l Park Hosp. Ass’n, 538 U.S. at 808). Moreover, “[d]etermining whether
administrative action is ripe for judicial review requires [courts] to evaluate (1) the fitness of the
issues for judicial decision and (2) the hardship to the parties of withholding court
consideration.” Nat’l Park Hosp. Ass’n, 538 U.S. at 808 (citing Abbott Labs. v. Gardner, 387
U.S. 136, 148–49 (1967)).
Here, Washtech has demonstrated an “injury to its members of sufficient immediacy and
ripeness to warrant judicial intervention.” Seldin, 422 U.S. at 516. Having found that
Washtech’s alleged injury of increased competition in the STEM labor market is not
38
“conjectural” or “speculative,” but rather “actual and imminent,” see supra Part III.A.2.v (noting
the White House Press Report that acknowledged the significant number of extensions that have
already been granted pursuant to the 2008 OPT Program Rule and DHS’s estimation of
continued increased growth of foreign labor based on the extensions granted under the 2016 OPT
Program Rule), the Court focuses its present analysis on the prudential aspects of the ripeness
doctrine. 10 From this perspective, Washtech’s challenge to the 2016 OPT Program Rule will not
“benefit from a more concrete setting . . . [as] the agency’s action is sufficiently final,” Delta Air
Lines, Inc. v. Export-Import Bank of United States, 85 F. Supp. 3d 250, 269 (D.D.C. 2015)
(quoting Atl. States Legal Found. v. EPA, 325 F.3d 281, 284 (D.C. Cir. 2003)), as the 2016 OPT
Program Rule is a final agency action, the “effects [of which are being] felt in a concrete way by
[Washtech and its named members],” Abbott Labs., 387 U.S. at 148.
Although the Government argues that “reviewing the 2016 [OPT Program] Rule’s
validity based on [Washtech’s] non-existent record and speculative assertions would be
tantamount to expending ‘resources on what amounts to shadow boxing,’” Gov’t’s Mem. at 34
(quoting Devia v. Nuclear Regulatory Comm’n, 492 F.3d 421, 425 (D.C. Cir. 2007)), the
evidence the Government seeks to have Washtech produce is not required at the motion to
dismiss stage, see id. (“The record is devoid of any allegations or evidence concerning job
applications, employers, or STEM OPT employees under the [2016 OPT Program] Rule, that,
even now, months after the rule went into effect, [Washtech’s] members have had to engage in or
refrain from any conduct, including competing with beneficiaries of the STEM OPT
10
The parties do not dispute the second element of the prudential ripeness doctrine, i.e., whether the parties will
experience any hardship if the Court withheld consideration of Washtech’s challenge to the 2016 OPT Program
Rule. See Gov’t’s Mem. at 32–34 (addressing only whether Washtech’s challenge is judicially fit and ultimately
ripe for review); see also Washtech’s Opp’n at 22 (responding only to the Government’s argument that its challenge
was not ripe for judicial review).
39
extension.”). Washtech’s allegations in its Complaint are therefore sufficient to demonstrate that
its named members are injured in a manner that render judicial review appropriate at this time.
Accordingly, the Court concludes that Washtech’s challenge to the 2016 OPT Program Rule is
both fit and ripe for judicial review.
D. Washtech’s Claims under Rule 12(b)(6)
Having concluded that Washtech has standing to pursue its challenges to the 2016 OPT
Program Rule, i.e., Counts II-IV of the Complaint, the Court now considers whether Washtech
has pleaded sufficient facts that plausibly demonstrate entitlement to the relief requested. The
Government contends that Washtech has not satisfied its pleading burden to “satisfy[ ] Rule
12(b)(6)’s plausibility standard as to [its] APA claims,” and therefore, dismissal of its APA
claims is warranted. Gov’t’s Mem. at 2. The Court will address the Government’s arguments
regarding the alleged procedural APA violations first, and then turn to an analysis of the
Government’s arguments with respect to the alleged substantive APA violations.
1. Washtech’s Procedural Violations Claims
Count III of Washtech’s Complaint asserts that the 2016 OPT Program Rule was
promulgated without complying with the requirement of the Congressional Review Act (“CRA”)
for proper notice and comment as to “whether aliens should be allowed to work beyond one year
under the OPT program.” Compl. ¶ 66. Additionally, Washtech alleges that “DHS failed to
comply with the incorporation by reference requirements of 1 C.F.R. part 51,” Compl. ¶ 80,
when it incorporated into the rule “an external list” 11 published on its website, Compl. ¶ 73. The
Government argues that “the CRA explicitly bars any claim or relief premised on a
11
This external list is “the STEM Designated Degree Program List, which [is] a complete list of qualifying degree
program categories, published on the Student and Exchange Visitor Program Web site at http://www.ice.gov/sevis.”
Compl. ¶ 71.
40
‘determination, finding, action, or omission’ of any CRA requirement, and flatly bars any
‘judicial review’ of such issues.” Gov’t’s Mem. at 42 (citing 5 U.S.C. § 805). The Government
also contends that Washtech’s allegation that DHS “failed to subject the question of whether the
OPT program should be expanded beyond a year to actual notice and comment as part of the
2016 [OPT Program] Rule is facially absurd [because] DHS explicitly sought notice and
comment on this issue, and responded to comments on it.” Id. (internal quotation marks and
citations omitted). Lastly, with respect to Washtech’s allegation that the 2016 OPT Program
Rule does not comport with the incorporation by reference requirements, the Government argues
that this claim must fail because Washtech’s Complaint does not allege that “(1) the STEM list is
required to be published in full in the Federal Register (which it is not), (2) Washtech lacked
actual and timely notice of the STEM list (which it had), or (3) how Washtech’s members have
been adversely affected by DHS’s inserting a weblink into its Rule.” Id. at 43 (footnote and
citation omitted).
Despite the extensive arguments the Government advanced in its motion to dismiss,
Washtech failed to substantively address any of these arguments in its opposition and its
responses to the Government’s arguments are woefully inadequate to avoid dismissal pursuant to
Rule 12(b)(6). See generally Washtech’s Opp’n at 43–44. Thus, the Court may treat the
Government’s position with respect to Count III as conceded. See Hopkins, 284 F. Supp. 2d at
25 (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive
motion and addresses only certain arguments raised by the defendant, a court may treat those
arguments that the plaintiff failed to address as conceded.” (citations omitted)). 12 In any event,
Washtech’s Count III procedural allegations fail to state a claim sufficient to demonstrate
12
As previously noted, this Court’s prior decision in Hopkins was affirmed by the Circuit. See Hopkins, 98 F.
App’x at 8.
41
entitlement to relief. First, the CRA “denies courts the power to void rules on the basis of
agency noncompliance with the [CRA as t]he language of [section] 805 is unequivocal and
precludes review of [such] claim.” Montanans for Multiple Use v. Barbouletos, 568 F.3d 225,
229 (D.C. Cir. 2009). Also, as the Court previously noted, DHS did subject the question of
whether the OPT program should be expanded beyond a year to actual notice and comment. See
supra Part III.A.2.a. Lastly, with respect to the alleged incorporation by reference violations,
Washtech has not alleged that the list was required to be published in the Federal Register, that it
did not receive actual or timely notice of the list, or that it was “adversely affected” by the
inclusion of the weblink to the list in the 2016 OPT Program Rule. See § 552(a)(1); see also
Am. Soc’y for Testing & Materials v. Public.Resource.org, Inc., No. 13-cv-1215 (TSC),
14-cv-0857 (TSC), 2017 WL 473822, at *1, slip op. at 3 (D.D.C. Feb. 2, 2017) (discussing the
procedures for incorporation by reference requirements and their correlation with § 552(a)(1)).
Accordingly, because Washtech failed to address the Government’s challenges to the alleged
APA procedural violations asserted in Count III of its Complaint, and because Washtech’s
allegations do not allow the Court to draw a reasonable inference that DHS is liable for the
alleged misconduct, the Court must dismiss Count III of Washtech’s Complaint.
2. Washtech’s Substantive APA Claims
Through Count II of its Complaint, Washtech asserts that the 2016 OPT Program Rule
exceeds DHS’s authority. The Government argues that Washtech’s “single, conclusory sentence
in paragraph [sixty-three] asserting [that] the Final Rule exceeds DHS’s statutory authority
(Count II) without more is facially implausible given the absence of any alleged facts supporting
this conclusory legal claim.” Gov’t’s Mem. at 45. Washtech failed to address the Government’s
arguments regarding Count II in its opposition. See generally Washtech’s Opp’n. Therefore, as
42
previously indicated, the Court may treat the Government’s position regarding Count II as
conceded, see supra Part III.2.D.1, which it deems appropriate to do.
In regards to Count IV of its Complaint, Washtech contends that the 2016 OPT Program
Rule was implemented arbitrarily and capriciously because it “requires employers to provide
foreign-guest workers OPT mentoring without requiring that such program be provided to
American workers” and “singles out STEM occupations for an increase in foreign labor through
longer work periods with no justification.” Compl. ¶¶ 82–83. The Government argues that
Washtech’s disagreement “with DHS’s policy choices, without more, does not make those
choices inconsistent with the discretion vested in it by law, let alone actionable under the APA.”
Gov’t’s Mem. at 44 (citation omitted). In addition, the Government asserts that Washtech has
not “provide[d] some notice of why a court might find it arbitrary and capricious for DHS to
require F-1 students to plan, document, and engage in training as a condition of receiving a
benefit, without guaranteeing the same training to the entire [United States] worker population.”
Id. at 44–45; see also id. at 45 (“[Washtech’s] failure to allege a single ‘justification’ that is
somehow unreasonable renders this claim implausible on its face . . . .”). In response, Washtech
argues that its Complaint includes the allegation that the “2016 OPT [Program] Rule singles out
STEM occupations for an increase in foreign labor through longer worker periods with no
justification,” Washtech’s Opp’n at 43 (citing Compl. ¶ 83), and that it “has not yet received a
copy of the full administrative record necessary to determine the full extent of arbitrary and
capricious action,” id. at 44.
Washtech’s conclusory allegations do not meet the pleading standard required under
Iqbal, and therefore, it has not alleged a claim of entitlement to relief. To demonstrate that it has
proffered sufficient allegations to support its proposition that the 2016 OPT Program Rule is
43
arbitrary and capricious, Washtech cites only one allegation it its Complaint. See id. at 43
(noting that the Complaint alleges that “[t]he 2016 OPT [Program] Rule singles out STEM
occupations for an increase in foreign labor through longer worker periods with no
justification”). But, this response is of no avail to Washtech because this allegation does not
provide the Court with the ability to reasonably infer that the 2016 OPT Program Rule is
somehow arbitrary and capricious; this allegation simply states that DHS provided no
justification for implementing the 2016 OPT Rule. Thus, despite the extensive explanations
provided in the 2016 OPT Program Rule, including the explanations provided in the notice of
proposed rulemaking on which Washtech publicly commented, Washtech has not alleged any
facts from which the Court can plausibly conclude that the 2016 OPT Program Rule is arbitrary
and capricious. And, although Washtech claims that it has yet to receive the full administrative
record, it has not identified, nor has the Court been able to identify, any legal authority that
relaxes a plaintiff’s pleading burden due to the fact that the plaintiff has not received the
complete administrative record. Accordingly, because Washtech’s threadbare legal conclusions
are not sufficient “to permit the [C]ourt to infer more than the mere possibility of misconduct,”
Iqbal, 556 U.S. at 679, the Court must dismiss Washtech’s APA claims.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must grant in part and deny in part
the Government’s motion to dismiss Washtech’s claims. Specifically, the Court must grant the
Government’s motion to dismiss pursuant to Rule 12(b)(1) with respect to Count I of Washtech’s
Complaint for lack of standing to challenge the 1992 OPT Program Rule, but it must deny the
Government’s motion to dismiss pursuant to Rule 12(b)(1) in all other respects because
Washtech has demonstrated that it has standing to challenge the 2016 OPT Program Rule, and
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because the Court has concluded that Washtech’s challenge is ripe for judicial review. However,
because Washtech has not alleged facts sufficient to survive the Government’s Rule 12(b)(6)
motion to dismiss, the Court must grant the Government’s motion due to Washtech’s failure to
plausibly state claims that are entitled to relief.
SO ORDERED this 19th day of April, 2017. 13
REGGIE WALTON
United States District Judge
13
An Order consistent with this Memorandum Opinion is issued simultaneously with this opinion.
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