Wash. Alliance of Tech. Workers v. U.S. Dep't of Homeland Sec.

• Citation: 74 F.Supp.3d 247
• Decision Date: 21 November 2014
• Docket Number: Civil Action No. 14–529 ESH
• Parties: Washington Alliance of Technology Workers, Plaintiff, v. U.S. Department of Homeland Security, Defendant.
• Court: U.S. District Court — District of Columbia

74 F.Supp.3d 247

Washington Alliance of Technology Workers, Plaintiff

v.U.S. Department of Homeland Security, Defendant.

Civil Action No. 14–529 ESH

United States District Court, District of Columbia.

Signed November 21, 2014

John Michael Miano, John M. Miano, Summit, NJ, for Plaintiff.

Geoffrey Forney, Leon Fresco, Neelam Ihsanullah, U.S. Department of Justice Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge

Plaintiff Washington Alliance of Technology Workers (“WashTech”), a collective-bargaining organization that represents science, technology, engineering, and mathematics (“STEM”) workers, has sued the U.S. Department of Homeland Security (“DHS”). Plaintiff challenges defendant's approval of the Optional Practical Training (“OPT”) program, which allows nonimmigrant foreign nationals on an F–1 student visa to engage in twelve months of employment during and following a full-time course load in a U.S. educational institution. See 8 C.F.R. § 214.2(f)(10). Plaintiff also challenges the seventeen-month extension to the OPT program instituted in April 2008 for eligible STEM students. See 8 C.F.R. § 214.2(f)(10)(ii)(C). Before the Court is defendant's motion to dismiss plaintiff's Complaint under Federal Rules of Civil Procedure 12(b)(1). (Mot. to Dismiss, Aug. 25, 2014 [ECF No. 10] (“Mot.”).) For the following reasons, the motion to dismiss is granted in part and denied in part.

BACKGROUND

F–1 visas allow foreign nationals to enter and remain in the United States temporarily to pursue a full course of study at an approved academic institution or language program. See 8 U.S.C. § 1101(a)(15)(F)(i). The F–1 visa is valid for the duration of status, defined as “the time during which an F–1 student is pursuing a full course of study at an educational institution approved by the [U.S. Citizenship and Immigration] Service for attendance by foreign students, or engaging in authorized practical training following completion of studies....” 8 C.F.R. § 214.2(f)(5)(i). F–1 students have been able to engage in practical training on a temporary basis following the completion of their studies since 1947. See 12 Fed.Reg. 5355, 5357 (Aug. 7, 1947) (codified at 8 C.F.R. § 125.15(b) (1947)). The practical training component of the F–1 visa regulations has changed over time both in terms of the length of time available to nonimmigrant students to pursue temporary employment in the United States and whether this training may occur during or following their studies. Currently, F–1 students may apply for up to twelve months of OPT related to their field of study, and this time may be utilized during or following completion of degree requirements. See 8 C.F.R. § 214.2(f)(10). OPT participants are particularly attractive to U.S. companies because employers of F–1 visa holders are not required to pay Medicare and Social Security taxes for these nonresident foreign nationals. See 26 U.S.C. § 3121(b)(19).

In April 2008, DHS issued an interim final rule with request for comments that extended the period of OPT by seventeen months for F–1 students with a qualifying STEM degree. Extending Period of OPT by 17 Months for F–1 Nonimmigrant Students with STEM Degrees, 73 Fed.Reg. 18,944 (Apr. 8, 2008). The express purpose of this extension was to allow U.S. employers to recruit STEM-skilled employees who would otherwise find employment outside of the United States due to the difficulty in obtaining an H–1B visa. Id. at 18,946. H–1B visas, which may be granted annually to foreign nationals in a specialty occupation to temporarily work in the United States, are limited and are highly oversubscribed. Id. ; see 8 C.F.R. § 214.2(h)(1)(ii)(B). As part of the rulemaking in 2008, DHS cited a National Science Foundation report that found foreign nationals comprised a significant number of STEM students pursuing higher education in the United States, but that other countries are providing more career opportunities for foreign nationals trained in STEM fields. 73 Fed.Reg. at 18,946 (citing National Science Foundation, Science and Engineering Indicators (2008)). This trend was creating intense international competition for highly-valued STEM employees. Id. The seventeen-month extension was designed to allow U.S. employers to more effectively compete for U.S.-educated, STEM-trained foreign nationals by allowing more time for these individuals to work in the country on an F–1visa while they try to obtain an H–1B visa. Id. DHS estimated that 30,205 F–1 students would complete their OPT between April 1 and July 31, 2008, and approximately one third of these students had obtained a degree in a STEM field. Id. at 18,950. Therefore, this regulation had “the potential to add tens of thousands of OPT workers to the total population of OPT workers in STEM occupations in the U.S. economy.” Id. DHS noted that the OPT seventeen-month extension for STEM students was initiated without notice and public comment “[t]o avoid a loss of skilled students through the next round of H–1B filings in April 2008.” Id.

In its Complaint, plaintiff alleges that the twelve-month, post-completion OPT program¹ violates U.S. laws that govern student and employment visas for foreign nationals (Claims 1–3) (Compl., Mar. 28, 2014 [ECF No. 1] ¶¶ 155–186), and that the seventeen-month extension to the OPT program for STEM students violates the Administrative Procedure Act, 5 U.S.C. § 500 et seq., (Claims 4–8). (Id. ¶¶ 187–278.) Plaintiff argues that the unlawful F–1 post-completion OPT regulations caused injury to its members through increased competition for STEM jobs. (Id. ¶ 55.) In particular, WashTech describes three of its members, Douglas Blatt (“Blatt”), Rennie Sawade (“Sawade”), and Ceasar Smith (“Smith”)—all computer programming specialists—who applied for STEM positions with many companies between 2008 and 2012 and were not hired because, allegedly, these positions were offered to F–1 students pursuing an OPT STEM extension. (Id. ¶¶ 79–154.) For example, Blatt, a computer programmer with an information technology degree, applied for STEM positions at JP Morgan Chase, Ernst & Young, IBM, and Hewlett Packard between 2010 and 2011. (Id. ¶¶ 102–115.) All of these companies employed F–1 visa holders who applied for OPT extensions available for STEM students. (Id. ) Sawade and Smith have similar backgrounds and were also rejected from multiple STEM positions since 2008. (Id. ¶¶ 79–101, 124–154.)

Defendant has filed a motion to dismiss, arguing that (1) plaintiff lacks Article III standing to bring any of its claims because it has not sufficiently pled an injury-in-fact to any of its members, and (2) Claims 1–3 are barred by the six-year statute of limitations for civil actions filed against the United States. The Court agrees that plaintiff does not have standing to bring its first three claims, but WashTech has sufficiently established standing to proceed with its remaining five claims.

ANALYSIS

I. STANDING

To establish constitutional standing, plaintiff must demonstrate that (1) it has suffered an injury-in-fact, (2) the injury is fairly traceable to the defendant's challenged conduct, and (3) the injury is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; see also Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C.Cir.2014). Plaintiff bears the burden of establishing each element of standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. However, on a motion to dismiss, the Court “ ‘must accept as true all material allegations of the Complaint, and must construe the Complaint in favor of the complaining party.’ ”

Ord v. Dist. of Columbia, 587 F.3d 1136, 1140 (D.C.Cir.2009) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ).

DHS argues that the plaintiff's alleged injuries do not satisfy the injury-in-fact requirement of Article III standing. As defendant correctly notes (Mot. at 9), plaintiff does not allege in its Complaint that it was harmed as an organization; however, “an association may have standing to assert the claims of its members even where it has suffered no injury from the challenged activity.” Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 342, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). To establish associational standing to sue on behalf of its members, plaintiff must 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, 200 (D.C.Cir.2011) (quoting Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.Cir.2002) ). It is uncontested that WashTech is a collective-bargaining association that operates on behalf of its members, satisfying the last two elements of associational standing. The parties, however, dispute whether a WashTech member was injured-in-fact and would thus have standing in his own right. To establish this element, plaintiff relies primarily on the doctrine of competitor standing.

Competitor standing doctrine recognizes that a party suffers a cognizable injury under Article III when “ ‘agencies lift regulatory restrictions on their competitors or otherwise allow[ ] increased competition.’ ” Mendoza, 754 F.3d at 1011 (quoting La. Energy and Power Auth. v. FERC, 141 F.3d 364, 367 (D.C.Cir.1998) ). The competitor standing doctrine typically arises in the context of establishing a constitutionally adequate injury-in-fact, and it has established that agency action benefiting a plaintiff's competitor can have a direct effect on a plaintiff association or one of its members. See Int'l Bhd. of Teamsters v. U.S. Dep't of Transp., 724 F.3d 206, 212 (D.C.Cir.2013) (U.S. truck drivers had standing because agency program increased...