MEMORANDUM OPINION
REGGIE
B. 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, brings 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 (1)
the DHS's 1992 regulation creating a twelve-month
optional practical training (“OPT”) program (the
“OPT Program”) for nonimmigrant foreign nationals
admitted into the United States with an F-1 student visa,
Pre-Completion Interval Training; F-1 Student Work
Authorization, 57 Fed. Reg. 31, 954 (July 20, 1992) (codified
at 8 C.F.R. pts. 214 & 274a) (the “1992 OPT Program
Rule”); and (2) the DHS's 2016 regulation
permitting eligible F-1 student visa holders with STEM
degrees to apply for an extension of their participation in
the OPT Program for up to an additional twenty-four months,
Improving and Expanding Training Opportunities for F-1
Nonimmigrant Students With STEM Degrees and Cap-Gap Relief
for All Eligible F-1 Students, 81 Fed. Reg. 13, 040 (Mar. 11,
2016) (codified at 8 C.F.R. pts. 214 & 274a) (the
“2016 OPT Program Rule”). See Complaint
(“Compl.”) ¶¶ 1-5, 8. Currently pending
before the Court are (1) the Defendants' Renewed Motion
to Dismiss (“Gov't's 2d Mot. to Dismiss”)
and (2) the National Association of Manufacturers, the
Chambers of Commerce of the United States of America, and the
Information Technology Industry Council's (collectively,
the “Organizations”) Motion to Intervene
(“Orgs.' Mot. to Intervene”). Upon careful
consideration of the parties' submissions, [1] the Court
concludes for the following reasons that it must deny the
Government's renewed motion to dismiss and grant the
Organizations' motion to intervene.
I.
BACKGROUND
The
Court has previously set forth the factual background of this
case, see Wash. All. of Tech. Workers v. U.S. Dep't
of Homeland Sec., 249 F.Supp.3d 524, 531-33 (D.D.C.
2017) (Walton, J.), aff'd in part, rev'd in
part, 892 F.3d 332 (D.C. Cir. 2018), and therefore will
not recite it again here. The Court will, however, briefly
summarize the procedural posture of this case, which is
pertinent to the resolution of the pending motions.
Washtech
filed its Complaint on June 17, 2016. See Compl. at
1. As previously noted by the Court,
Washtech allege[d] that the 1992 OPT Program Rule and the
2016 OPT Program Rule exceed the authority of [the] DHS
[under] several provisions of the Immigration and Nationality
Act (“INA”) (Counts I and II); that the 2016 OPT
Program Rule was issued in violation of the Congressional
Review Act . . . because of non-compliance with the notice
and comment and incorporation by reference requirements of
the statute (Count III); and that the 2016 OPT Program Rule
[was] arbitrary and capricious (Count IV).
Wash. All. of Tech. Workers, 249 F.Supp.3d at 533
(second alteration in original) (citations and internal
quotation marks omitted). On August 26, 2016, the Government
moved to “dismiss this lawsuit in its entirety . . .
for lack of subject matter jurisdiction and failure to state
a claim.” Gov't's 1st Mot. to Dismiss at 2. On
April 19, 2017, the Court granted the Government's motion
to dismiss and dismissed Washtech's Complaint in its
entirety. See Wash. All. of Tech. Workers, 249
F.Supp.3d at 556. Specifically, the Court dismissed Count I
of the Complaint pursuant to Federal Rule of Civil Procedure
12(b)(1) “for lack of standing to challenge the 1992
OPT Program Rule” and dismissed Counts II through IV
pursuant to Federal Rule of Civil Procedure 12(b)(6)
“due to Washtech's failure to plausibly state
claims that are entitled to relief.” Id. On
appeal, the District of Columbia Circuit “affirm[ed]
th[is] [ ] [C]ourt's dismissal of Counts I, III[, ] and
IV, ” but “reversed its dismissal of Count
II.” Wash. All. of Tech Workers, 892 F.3d at
348. With respect to Count II, the Circuit reasoned that
“whether Count II may proceed remains in
question” because, although “the six-year statute
of limitations on . . . [Washtech's] challenge closed in
1998[, ] Washtech asserts[] [ ] that it may still [raise its]
challenge . . . under the reopening doctrine, ”
id. at 345, and “if the DHS reopened the issue
of whether the OPT [P]rogram as a whole is statutorily
authorized in its notice of proposed rulemaking
vis-à-vis the 2016 [OPT Program] Rule, its renewed
adherence is substantively reviewable, and the challenge to
the entire program may proceed, ” id. at 346
(citation and internal quotation marks omitted). The Circuit
“decline[d] to address the question [of whether the
reopening doctrine is applicable] in the first instance and
le[ft] it for th[is] [ ] Court to address on remand.”
Id.
On
remand, the Court ordered the Government to file a renewed
motion to dismiss addressing the issue of whether the
reopening doctrine applies to Washtech's challenge to the
OPT Program. See Order at 1-2 (Sept. 18, 2018), ECF
No. 36. On October 18, 2018, the Government filed its renewed
motion to dismiss, seeking dismissal of Count II of
Washtech's Complaint pursuant to Rule 12(b)(1) and
(b)(6), see Gov't's 2d Mot. to Dismiss at 1,
which Washtech opposes, see generally Washtech's
2d Mot. to Dismiss Opp'n. On that same day, the
Organizations filed their motion to intervene in this case.
See Orgs.' Mot. to Intervene at 1. These motions
are the subjects of this Memorandum Opinion.
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.
of Am., 511 U.S. 375, 377 (1994). Thus, the Court is
obligated to dismiss a claim if it “lack[s] . . .
subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1).
“A motion for dismissal under [Federal Rule of Civil
Procedure] 12(b)(1) ‘presents a threshold challenge to
the [C]ourt'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)). Because “[i]t is to be
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 the Court has
subject-matter jurisdiction, see Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992).
The
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. Fed.
Deposit Ins. Corp., 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 in resolving a 12(b)(6)
motion for failure to state a claim.” Grand Lodge
of the Fraternal Order of Police v. Ashcroft, 185
F.Supp.2d 9, 13-14 (D.D.C. 2001) (internal quotation marks
omitted). The Court “need not limit itself to the
allegations of the complaint, ” id. at 14;
rather, the “[C]ourt may consider such materials
outside the pleadings as it deems appropriate to resolve the
questions [of] whether it has jurisdiction [over] the case,
” Scolaro v. D.C. Bd. of Elections &
Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000); see
Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253
(D.C. Cir. 2005).
B.
Rule 12(b)(6) Motion to Dismiss
A
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Thus, to survive a
motion to dismiss for “failure to state a claim upon
which relief may be granted, ” Fed.R.Civ.P. 12(b)(6),
the complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face, '” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
“claim has facial plausibility when the plaintiff
pleads factual content that allows the [C]ourt to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556); see Kowal v. MCI
Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)
(noting that the plaintiff is entitled to “the benefit
of all inferences that can be derived from the facts
alleged”). Although the Court must accept the facts
pleaded as true, legal allegations devoid of factual support
are not entitled to this presumption. See, e.g.,
Kowal, 16 F.3d at 1276. In addition to allegations
asserted within the four corners of the complaint, the Court
may also 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).
C.
Rule 24 Motion to Intervene
Federal
Rule of Civil Procedure 24 provides for both intervention as
of right and permissive intervention. With respect to
intervention as of right, Rule 24 provides in relevant part
that,
[o]n timely motion, the [C]ourt must permit anyone to
intervene who[] . . . claims an interest relating to the
property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a
practical matter impair or impede the movant's ability to
protect its interest, unless existing parties adequately
represent that interest.
Fed. R. Civ. P. 24(a)(2). The District of Columbia Circuit
has distilled this rule into four factors for the Court to
consider:
(1) the timeliness of the motion; (2) whether the applicant
“claims an interest relating to the property or
transaction which is the subject of the action”; (3)
whether “the applicant is so situated that the
disposition of the action may as a practical matter impair or
impede the applicant's ability to protect that
interest”; and (4) whether the “applicant's
interest is adequately represented by existing
parties.”
Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731
(D.C. Cir. 2003) (quoting Mova Pharm. Corp. v.
Shalala, 140 F.3d 1060, 1074 (D.C. Cir. 1998)). An
applicant “seeking to intervene as of right must [also]
demonstrate that it has standing under Article III of the
Constitution.” Id. at 731-32.
Rule 24
also authorizes permissive intervention where, “[o]n
timely motion, ” an applicant demonstrates that it
“has a claim or defense that shares with the main
action a common question of law or fact.” Fed.R.Civ.P.
24(b)(1). “[P]ermissive intervention is an inherently
discretionary enterprise” for the Court. EEOC v.
Nat'l Children's Ctr., Inc., 146 F.3d 1042, 1046
(D.C. Cir. 1998). However, the putative intervenor must
ordinarily present: “(1) an independent ground for
subject matter jurisdiction; (2) a timely motion; and (3) a
claim or defense that has a question of law or fact in common
with the main action.” Id. Additionally, the
Court “must consider whether the [requested]
intervention will unduly delay or prejudice the adjudication
of the original parties' rights.” Fed.R.Civ.P.
24(b)(3). “It remains . . . an open question in this
[C]ircuit whether Article III standing is required for
permissive intervention.” Defs. of Wildlife v.
Perciasepe, 714 F.3d 1317, 1327 (D.C. Cir. 2013) (first
alteration in original) (quoting In re Endangered Species
Act Section 4 Litig., 704 F.3d 972, 980 (D.C. Cir.
2013)).
III.
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