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

United States District Court, District of Columbia

July 1, 2019




         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.


         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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