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

United States District Court, District of Columbia

April 19, 2017



          REGGIE WALTON United States District Judge.

         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 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 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 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 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.


         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 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 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 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) (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. 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).

         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 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 ...

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