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

• Decision Date: 08 June 2018
• Docket Number: No. 17-5110,17-5110
• Parties: WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS, Appellant v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

892 F.3d 332

WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS, Appellant

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Appellees.

No. 17-5110

United States Court of Appeals, District of Columbia Circuit.

Argued February 20, 2018

Decided June 8, 2018

John M. Miano argued the cause and filed briefs for the appellant. Dale L. Wilcox and Michael M. Hethmon entered appearances.

Scott G. Stewart, Attorney, United States Department of Justice, argued the cause for the appellees. Glenn M. Girdharry and Erez Reuveni, Assistant Directors, and Joshua S. Press, Trial Attorney, were with him on the brief.

Before: Henderson, Circuit Judge, and Edwards and Ginsburg, Senior Circuit Judges.

Karen LeCraft Henderson, Circuit Judge:

The Washington Alliance of Technology Workers (Washtech), a union representing workers throughout the country in the Science, Technology, Engineering and Mathematics (STEM) labor market, challenges United States Department of Homeland Security (DHS) regulations that allow nonimmigrant aliens temporarily admitted to the country as students to remain in the country for up to three years after finishing a STEM degree to pursue work related to their degree. Washtech’s complaint alleged that the regulations exceed their statutory authority, suffer from multiple procedural deficiencies and are arbitrary and capricious. The district court dismissed Washtech’s complaint in full, relying on a mixture of grounds—standing; failure to state a plausible claim for relief; and a deficient opposition to the DHS’s motion to dismiss—depending on the precise claim at issue. As detailed below, we affirm in part and reverse and remand in part.

I. BACKGROUND

The Immigration and Nationality Act of 1952 (INA), 8 U.S.C. §§ 1101 et seq. , authorizes the DHS to admit certain classes of nonimmigrant aliens. Nonimmigrant aliens are foreign nationals who enter the country for fixed, temporary periods of time pursuant to a visa. The F–1 student visa authorizes admission of "an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing ... a course of study ... at" certain academic institutions, including colleges and universities. 8 U.S.C. § 1101(a)(15)(F)(i).

The Congress provided that "admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the" DHS Secretary¹ "may by regulations prescribe." Id. § 1184(a)(1). The DHS has three times—in 1992, 2008 and 2016—promulgated regulations that allow nonimmigrant aliens with student visas to remain in the country after finishing their degree to participate in the workforce for a specified period of time. See Wash. All. of Tech. Workers v. DHS , 857 F.3d 907, 909–10 (D.C. Cir. 2017).

A. 1992 Regulation

In 1992, the DHS promulgated a regulation that established an "optional practical training" (OPT) program for a nonimmigrant admitted with an F–1 student visa. Pre-Completion Interval Training; F–1 Student Work Authorization, 57 Fed. Reg. 31954 (July 20, 1992) (1992 Rule). The regulation allowed a student to "apply ... for authorization for temporary employment for [optional] practical training directly related to the student’s major area of study." 8 C.F.R. § 214.2(f)(10)(ii)(A) (1992). The student "may be authorized" to engage in such employment "[a]fter completion of all course requirements for the degree" or "[a]fter completion of the course of study" for which the student was granted the F–1 visa. Id. § 214.2(f)(10)(ii)(A)(3), (4). The 1992 Rule authorized a student to remain in the country for one year after completing his degree, see id. § 214.2(f)(11), if "engag[ed] in authorized practical training following completion of studies," id. § 214.2(f)(5)(i).

B. 2008 Regulation

In 2008, the DHS promulgated a regulation that authorized an F–1 student visa holder with a STEM degree who was participating in the OPT program to apply for an extension of OPT of up to seventeen months. 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. 18944 (Apr. 8, 2008) (2008 Rule); 8 C.F.R. § 214.2(f)(10)(ii)(C) (2008). In 2014, Washtech filed a complaint challenging the 2008 Rule and the district court ultimately vacated the 2008 Rule. Wash. All. of Tech. Workers v. DHS (Washtech I ), 156 F.Supp.3d 123 (D.D.C. 2015). Although the district court held that the DHS had statutory authority to create the OPT program, id. at 137–45, it held that the DHS improperly issued the 2008 Rule without notice and comment, id. at 145–47. The district court stayed vacatur to allow the DHS to correct its error. Id. at 147–49.

C. 2016 Regulation

After Washtech I , the DHS issued a notice of proposed rulemaking with a request for comments. 80 Fed. Reg. 63376 (Oct. 19, 2015). After comments, the DHS issued its final rule. 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. 13040 (Mar. 11, 2016) (2016 Rule). The 2016 Rule authorizes an F–1 student visa holder with a STEM degree who is participating in the OPT program to "apply for an extension of OPT" of up to twenty-four months. 8 C.F.R. § 214.2(f)(10)(ii)(C) (2016).

The 2016 Rule includes certain "safeguards" against "adverse [effects] on U.S. workers," 81 Fed. Reg. at 13042 : employers who want to participate in the program must attest, inter alia , that the OPT student "will not replace a full- or part-time, temporary or permanent U.S. worker," 8 C.F.R. § 214.2(f)(10)(ii)(C)(10)(ii), and that the "duties, hours, and compensation" of OPT workers "[will] be commensurate with" those of "similarly situated U.S. workers," id. § 214.2(f)(10)(ii)(C)(8).

After the 2016 Rule was promulgated, we "vacate[d]" as "moot" the district court’s decision invalidating the 2008 Rule "because the 2008 Rule is no longer in effect." Wash. All. of Tech. Workers v. DHS (Washtech II ), 650 Fed.Appx. 13, 14 (D.C. Cir. 2016).

D. Procedural History

In June 2016, Washtech filed a complaint challenging both the 1992 Rule and the 2016 Rule. Washtech brought four counts, alleging: (1) the 1992 Rule "exceeds" the DHS’s statutory "authority"; (2) the 2016 Rule "is in excess of" the DHS’s statutory "authority"; (3) the DHS committed three procedural violations in promulgating the 2016 Rule; and (4) the 2016 Rule "was implemented arbitrarily and capriciously." Compl. ¶¶ 54–84.

The DHS moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure (FRCP) 12(b)(1) for lack of jurisdiction because Washtech did not have standing and pursuant to FRCP 12(b)(6) for failure to state a claim for relief. Washtech timely filed a response in opposition to the motion to dismiss.

The district court granted the DHS’s motion to dismiss. Wash. All. of Tech. Workers v. DHS (Washtech III ), 249 F.Supp.3d 524 (D.D.C. 2017). It dismissed Count I—the challenge to the 1992 Rule’s statutory authority—on two alternative grounds. First , the district court held that Washtech "conceded" its lack of standing because it "fail[ed] to address the Government’s argument that it lacks standing" in its opposition to the motion to dismiss. Id. at 536. Second , the district court held that Washtech in fact did not have standing. Id. at 536–37. The district court dismissed Count II—the challenge to the 2016 Rule’s statutory authority—because Washtech "conceded" that it failed to state a claim for relief by "fail[ing] to address the Government’s arguments" that Washtech insufficiently pleaded the claim in its opposition to the motion to dismiss. Id. at 555. The district court dismissed Count III on two alternative grounds. First , the district court held that Washtech conceded that it failed to state a claim for relief by not addressing the Government’s arguments in its opposition to the motion to dismiss. Id. at 554. Second , the district court held that Washtech did not sufficiently plead a cause of action in Count III. Id. at 555. The district court dismissed Count IV for failure to state a claim for relief. Id. at 555–56. This appeal followed.

II. ANALYSIS

The "allegations of the complaint are generally taken as true for purposes of a motion to dismiss." Hughes v. Rowe , 449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam). We review the district court’s dismissal of a complaint for lack of standing or for failure to state a claim de novo . Food & Water Watch, Inc. v. Vilsack , 808 F.3d 905, 913 (D.C. Cir. 2015) (standing); Kowal v. MCI Commc’ns Corp. , 16 F.3d 1271, 1276 (D.C. Cir. 1994) (failure to state a claim). We review the district court’s dismissal of a complaint for failure to respond to a motion to dismiss for abuse of discretion. Fox v. Am. Airlines, Inc. , 389 F.3d 1291, 1294 (D.C. Cir. 2004).

We first address Washtech’s standing. We conclude that Washtech had standing to bring Counts II, III and IV—all challenges to the 2016 Rule—under the doctrine of competitor standing. We do not decide whether Washtech had standing to bring Count I—the challenge to the 1992 Rule—because we affirm dismissal of Count I on the alternative jurisdictional ground of untimeliness. We then address the district court’s dismissal of Counts II, III and IV. We reverse dismissal of Count II because we believe the district court abused its discretion in dismissing a plausible claim for relief based on Washtech’s inadequate opposition to the DHS’s motion to dismiss. On remand, the district court must consider whether the reopening doctrine applies to the issue raised in Count II. We affirm the district court’s dismissal of Counts III and IV pursuant to FRCP 12(b)(6) because neither states a plausible claim for relief.

A. FRCP 12(b)(1) challenges

The DHS...