United States District Court, D. Columbia.
Washington Alliance of Technology Workers, Plaintiff: John
Michael Miano, JOHN M. MIANO, Summit, N.J. USA.
U.S. Department of Homeland Security, Defendant: Erez
Reuveni, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, DC USA; Glenn M. Girdharry, LEAD ATTORNEY, U.S.
DEPARTMENT OF JUSTICE, Washington, DC; Leon Fresco, LEAD
ATTORNEY, United States Department of Justice, Civil Division
- Office Of Immigration Litigation, Washington, DC USA; Sarah
S. Wilson, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil
Division, Office Of Imigration Litigation, Washington, DC
Eagle Forum Education & Legal Defense Fund, Amicus: Lawrence
J. Joseph, LEAD ATTORNEY, LAW OFFICES OF LAWRENCE J. JOSEPH,
Washington, DC USA.
Judicial Watch, Inc., Amicus: Chris Fedeli, LEAD ATTORNEY,
JUDICIAL WATCH, INC., Washington, DC USA.
SEGAL HUVELLE, United States District Judge.
Department of Homeland Security (" DHS" ) has moved
under Federal Rule of Civil Procedure 60(b)(6) for limited
relief from the Court's August 12, 2015 Order.
(Def.'s Mot. for Limited Relief [ECF No. 47].) In
relevant part, that Order vacated on procedural grounds an
interim final rule promulgated by DHS, but it stayed the
effect of vacatur for six months in order to allow DHS to
cure those procedural defects. ( See Mem. Op. [ECF
No. 43] at 37 (issued Aug. 12, 2015).) At present, the stay
is set to expire on February 12, 2016. ( See Aug.
12, 2015 Order.) DHS now seeks to extend the stay by
approximately ninety days, which it claims is necessary in
order to issue a new rule in place of the vacated interim
rule, thereby avoiding a regulatory gap. (Def.'s Mot. for
Limited Relief at 1.) Plaintiff opposes DHS's motion,
arguing that (1) the Court lacks jurisdiction to grant the
requested relief due to plaintiff's pending appeal to the
D.C. Circuit, and (2) DHS fails to show " extraordinary
circumstances" warranting relief under Rule 60(b)(6). (
See Pl.'s Opp'n [ECF No. 49] at 5-6.) For
the reasons that follow, DHS's motion for limited relief
will be granted.
facts of this dispute have been laid out in greater detail in
the Court's prior opinion. ( See Mem. Op. at
1-5.) As relevant here, DHS permits nonimmigrant foreign
nationals on an F-1 student visa to receive optional
practical training (" OPT" ) during and after
completing their studies at a U.S. educational institution.
See 8 C.F.R. § 214.2(f)(10)(ii). In April 2008,
DHS promulgated an interim final rule that extended the
maximum OPT period from twelve months to twenty-nine months
for students with qualifying degrees in science, technology,
engineering, or math (" STEM" ). See
Extending Period of Optional Practical Training by 17 Months
for F-1 Nonimmigrant Students with STEM Degrees and Expanding
Cap-Gap Relief for All F-1 Students With Pending H-1B
Petitions, 73 Fed.Reg. 18,944 (Apr. 8, 2008) (the " 2008
Rule" ). DHS issued the 2008 Rule without notice and
public comment. See id. at 18,950. It
claimed that the need " [t]o avoid a loss of skilled
students through the next round of H-1B filings in April
2008" provided it with " good cause" to
dispense with notice-and-comment under 5 U.S.C. §
553(b). See id.
filed suit in March 2014 raising numerous challenges to the
OPT program, and in particular, whether DHS had good cause to
waive notice-and-comment before promulgating the 2008 Rule. (
See Compl. [ECF No. 1] ¶ ¶ 229-49.) In
March 2015, the parties cross-moved for summary judgment.
(Pl.'s Cross Mot. for Summ. J. [ECF No. 25]; Def.'s
Mot. for Summ. J. [ECF No. 27].) DHS argued that " good
cause" existed because an economic crisis would have
resulted if the 2008 Rule had not been immediately issued, as
the U.S. high-tech sector would have lost much-needed STEM
workers to foreign competitors. ( See Def.'s
Mot. for Summ. J. at 42-45.) The Court held otherwise,
finding no justification for waiving notice-and-comment--even
accepting the importance of STEM workers to the economy, DHS
had long been aware of the purported " emergency"
and had failed to act until 2008. ( See Mem. Op. at
32-34.) The Court further held that the appropriate remedy
was vacatur of the 2008 Rule, but it found that "
substantial hardship for foreign students and a major labor
disruption for the technology sector" would result if
" thousands of young workers had to leave their jobs in
short order." ( Id. at 36.) Therefore, it
stayed the effect of vacatur for six months to allow DHS
enough time to promulgate a replacement rule. ( Id.
district court has discretion under Rule 60(b) to relieve a
party from a final order for a series of specific, enumerated
reasons or for " any other reason that justifies
relief." See Fed.R.Civ.P. 60(b)(6); Murray
v. Dist. of Columbia, 52 F.3d 353, 355, 311 U.S.App.D.C.
204 (D.C. Cir. 1995). To invoke this " catch-all"
provision, the movant must demonstrate that (1) none of the
enumerated grounds for relief are applicable, Kramer v.
Gates, 481 F.3d 788, 792, 375 U.S.App.D.C. 292 (D.C.
Cir. 2007), (2) the motion was " made within a
reasonable time," Fed.R.Civ.P. 60(c)(1), and (3) the
requested relief is justified by extraordinary circumstances
that are beyond the movant's control, Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507
U.S. 380, 393, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The
" extraordinary circumstances" requirement derives
from the principle that " [t]here must be an end to
litigation someday, and free, calculated, deliberate choices
are not to be relieved from." See Ackermann
v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 95
L.Ed. 207 (1950). As such, the Court " must balance the
interest in justice with the interest in protecting the
finality of judgments." Summers v. Howard
Univ., 374 F.3d 1188, 1193, 362 U.S.App.D.C. 363 (D.C.
first argues that its pending appeal to the D.C. Circuit
divests this Court of jurisdiction to grant the requested
relief, unless the Court first issues an indicative ruling
and then seeks remand of the case from the Circuit. (
See Pl.'s Opp'n at 5-6.) It is true that the
filing of a notice of appeal confers jurisdiction on the
court of appeals, but " the district court only
surrenders 'its control over those aspects of the case
involved in the appeal.'" SeeHorn &
Hardart Co. v. Nat'l Rail Passenger Corp., 843 F.2d
546, 548, 269 U.S.App.D.C. 53 (D.C. Cir. 1988) (quoting
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56,
58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982)). Moreover,
divestiture during appeal is a prudential, " judge-made
doctrine designed to avoid the confusion and waste of time
that might flow from putting the same issues before two
courts at the same time. It should not be employed to defeat
its purposes nor to induce needless paper shuffling."
Kern Oil & Ref. Co. v. Tenneco Oil Co., 840 F.2d
730, 734 (9th Cir. 1988) (quoting 9 James Wm. Moore et
al., Moore's Federal Practice ¶ 203.11 (2d ed.
1987)). In Kern Oil, for instance, the Ninth Circuit
held that the district court retained jurisdiction to enter
findings of fact while an appeal was pending, because
requiring a remand solely to enter the necessary findings
would be unduly formalistic. See ...