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Washington Alliance of Technology Workers v. U.S. Department of Homeland Security

United States District Court, D. Columbia.

January 23, 2016


          For Washington Alliance of Technology Workers, Plaintiff: John Michael Miano, JOHN M. MIANO, Summit, N.J. USA.

         For 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 USA.

         For Eagle Forum Education & Legal Defense Fund, Amicus: Lawrence J. Joseph, LEAD ATTORNEY, LAW OFFICES OF LAWRENCE J. JOSEPH, Washington, DC USA.

         For Judicial Watch, Inc., Amicus: Chris Fedeli, LEAD ATTORNEY, JUDICIAL WATCH, INC., Washington, DC USA.


         ELLEN SEGAL HUVELLE, United States District Judge.

         Defendant 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.


         The 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.

         Plaintiff 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. at 37.)



         A 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. Cir. 2004).


         Plaintiff 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 ...

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