Case 1:16-cv-01170-RBW Document 32 Filed 04/19/17 Page 1 of 45
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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` Civil Action No. 16-1170 (RBW)
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` ____________________________________
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`WASHINGTON ALLIANCE OF
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`TECHNOLOGY WORKERS ,
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`Plaintiff, )
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`v. )
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`U.S. DEPARTMENT OF )
`HOMELAND SECURITY, et al., )
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`Defendants. )
`____________________________________ )
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`The plaintiff, the Washington Alliance of Technology Workers (“Washtech”), a
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`MEMORANDUM OPINION
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`collective-bargaining organization representing science, technology, engineering, and
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`mathematics (“STEM”) workers, brought this action against the defendants, the United States
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`Department of Homeland Security (“DHS”), the Secretary of Homeland Security, the United
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`States Immigration and Customs Enforcement (“ICE”), the Director of ICE, the United States
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`Citizenship and Immigration Services (“Citizenship and Immigration Services”), and the
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`Director of Citizenship and Immigration Services (collectively, the “Government”) challenging,
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`pursuant to the Administrative Procedure Act (the “APA”), 5 U.S.C. §§ 701–06 (2012), DHS’s
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`1992 regulation creating a twelve-month optional practical training program (“OPT or OPT
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`Program”) for nonimmigrant foreign nationals on F-1 student visas (the “1992 OPT Program
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`Rule”), see 8 C.F.R. § 214.2(f)(10)(ii)(1992), and DHS’s 2016 regulation extending the OPT
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`Program by an additional twenty-four months for eligible STEM students (the “2016 OPT
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`Program Rule”), see Complaint (“Compl.”) ¶¶ 1–5, 8; see also 81 Fed. Reg. 13,040 (Mar. 11,
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`Case 1:16-cv-01170-RBW Document 32 Filed 04/19/17 Page 2 of 45
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`2016) (codified at 8 C.F.R. §§ 214 and 274a). Currently pending before the Court is the
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`Defendants’ Motion to Dismiss Plaintiff’s Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and (6)
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`(“Gov’t’s Mot.”), ECF No. 18, which seeks dismissal of the Complaint on the grounds that this
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`Court lacks subject matter jurisdiction to adjudicate Washtech’s complaint; Washtech lacks
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`standing to pursue this action; Washtech’s challenge to the 1992 OPT Program Rule is
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`time-barred; and Washtech has failed to state a claim upon which relief may be granted. Upon
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`careful consideration of the parties’ submissions,1 the Court concludes that it must deny in part
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`and grant in part the Government’s motion to dismiss.
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`I.
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`BACKGROUND
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`A. Statutory and Legal Background
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`An F-1 visa provides foreign national students valid immigration status for the duration
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`of a full course of study at an approved academic institution in the United States. See 8 U.S.C.
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`§ 1101(a)(15)(F)(i). Since 1947, F-1 visa students, in conjunction with pursuing a course of
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`study, have been able to engage in some version of OPT during their studies or on a temporary
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`basis after the completion of their studies. See 8 C.F.R. § 125.15(b) (1947). And since 1992,
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`F-1 visa students have been allowed to apply for up to twelve months of OPT, to be used either
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`during or following the completion of their degree requirements. See 8 C.F.R. § 214.2(f)(10)
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`(2016).
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`“In April 2008, DHS issued an interim final rule with request for comments extending the
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`[twelve]-month OPT [P]rogram by an additional [seventeen] months for F-1 [visa]
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`nonimmigrants with qualifying STEM degrees, to a total of [twenty-nine] months.” Gov’t’s
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`1 In addition to the filings already identified, the Court considered the following submissions in reaching its
`decision: (1) the Defendants’ Memorandum and Points of Authorities in Support of the Motion to Dismiss (“Gov’t’s
`Mem.”); (2) the Plaintiff’s Response to Defendant[s’] Motion to Dismiss (“Washtech’s Opp’n”); and (3) the
`Defendants’ Reply in Support of the Motion to Dismiss (“Gov’t’s Reply”).
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`2
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`Mem. at 4 (citing Extending Period of Optional Practical Training by 17 Months for F-1
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`Nonimmigrant Students with STEM Degrees, 73 Fed. Reg. 18,944 (Apr. 8, 2008) (the “2008
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`OPT Program Rule”)); see also Washtech’s Opp’n at 3. The goal of this extension was to help
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`alleviate a “competitive disadvantage” for United States employers recruiting STEM-skilled
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`workers educated in the United States under the H-1B visa program. 73 Fed. Reg. 18,944. H-1B
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`visas are temporary employment visas granted annually to foreign nationals in “specialty
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`occupations,” including many occupations in the STEM field. 8 C.F.R. § 214.2(h)(1)(ii)(B).
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`The number of H-1B visas issued on an annual basis is limited, and the program is
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`oversubscribed. See 73 Fed. Reg. at 18,946. The extension provided by the 2008 OPT Program
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`Rule sought to “expand the number of alien STEM workers that could be employed in the
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`[United States],” Compl. ¶ 46; see also 73 Fed. Reg. at 18,953, and explicitly referenced the
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`specific concern regarding the rigidity of the H-1B visa program, see 73 Fed. Reg. at 18,946–47.
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`In 2014, Washtech filed suit, challenging on procedural and substantive grounds, both the
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`underlying twelve-month 1992 OPT Program Rule and the seventeen-month extension added by
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`the 2008 OPT Program Rule. See Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec.
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`(“Washtech I”), 74 F. Supp. 3d 247, 251–52 (D.D.C. 2014). There, another member of this
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`Court found that Washtech lacked standing to challenge the 1992 OPT Program Rule, see id. at
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`252–53, but did have standing to challenge the 2008 OPT Program Rule, see id. at 253. The
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`Court, however, vacated the 2008 OPT Program Rule because it had been promulgated without
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`notice and comment, see Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec.
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`(“Washtech II”), 156 F. Supp. 3d 123, 149 (D.D.C. 2015), judgment vacated, appeal dismissed,
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`650 Fed. App’x 13 (D.C. Cir. 2016), and stayed vacatur of the rule to allow DHS to promulgate a
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`new rule, id. On appeal of that decision to the District of Columbia Circuit, Washtech alleged
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`3
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`that the court “had improperly allowed DHS to continue the policies unlawfully put in place in
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`the 2008 OPT Rule . . . [and that] the OPT program was [not] within DHS[’s] authority.”
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`Washtech’s Opp’n at 4.
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`In response to this Court’s colleague’s ruling, DHS issued a notice of proposed
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`rulemaking on October 19, 2015, requesting the submission of public comments prior to
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`November 18, 2015. See Improving and Expanding Training Opportunities for F-1
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`Nonimmigrant Students with STEM Degrees, 80 Fed. Reg. 63,376 (Oct. 19, 2015). Whereas the
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`2008 OPT Program Rule had extended the OPT Program tenure by seventeen months for eligible
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`STEM students, this notice instead proposed extending the OPT Program tenure by twenty-four
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`months. See id. (explaining that “[t]his [twenty-four] month extension would effectively replace
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`the [seventeen] month STEM OPT [Program] extension currently available to certain STEM
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`students”). The notice also deviated from the 2008 OPT Program Rule in several other respects.
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`See id. at 63,379–94 (discussing the proposed changes in detail). Namely, the notice contained a
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`distinct change in tone—it dropped all references to the H-1B visa program that had been in the
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`2008 OPT Program Rule and instead explained that its purpose was to “better ensure that
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`students gain valuable practical STEM experience that supplements knowledge gained through
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`their academic studies, while preventing adverse effects to [United States] workers.” Id. at
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`63,376.
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`On March 11, 2016, after the expiration of the public notice and comment period, DHS
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`issued the final version of the 2016 OPT Program Rule. See Improving and Expanding Training
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`Opportunities for F-1 Nonimmigrant Students with STEM Degrees, 81 Fed. Reg. 13,040 (Mar.
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`11, 2016) (codified at 8 C.F.R. §§ 214 and 274a). The District of Columbia Circuit then
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`dismissed as moot Washtech’s appeal challenging the 2008 OPT Program Rule and vacated this
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`4
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`Court’s colleague’s judgment in its entirety. See Washtech II, 650 Fed. App’x. at 14. On June
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`17, 2016, Washtech initiated this action.
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`B. Current Posture of Washtech’s Challenges to the OPT Program
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`Washtech alleges that the 1992 OPT Program Rule and 2016 OPT Program Rule “exceed
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`the authority of DHS [under] several provisions of the Immigration and Nationality Act
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`(‘INA’),” Compl. ¶ 4, (Counts I and II); that the 2016 OPT Program Rule was issued in violation
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`of the Congressional Review Act (the “CRA”) because of non-compliance with the notice and
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`comment and incorporation by reference requirements of the statute (Count III), see id. ¶¶ 64–
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`80; and that the 2016 OPT Program Rule is arbitrary and capricious (Count IV), see id. ¶¶ 81–84.
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`Also in its Complaint, Washtech names three of its members that have allegedly suffered injury
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`as a result of the 1992 and 2016 OPT Program Rules—Rennie Sawade, Douglas Blatt, and
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`Ceasar Smith (collectively, the “Named Washtech Members”). See id. ¶¶ 106, 137, 184.
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`Sawade and Blatt work in computer programming, and Smith is a computer systems and
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`networking administrator—all fields that fall within the STEM designation.2 Id. Between April
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`2008 and March 2016, the Named Washtech Members unsuccessfully applied for several jobs in
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`the STEM field with companies that either “placed job advertisements seeking workers on OPT,”
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`see id. ¶ 140, or sought multiple OPT extension applications for their current workers, see id. ¶¶
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`186–219. Washtech alleges that all three named members were unable to obtain the jobs for
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`which they had applied because “the 2016 OPT [Program] Rule and the 1992 OPT [Program]
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`Rule allow additional competitors into Washtech members’ job market,” thereby forcing
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`2 Although STEM has no standard definition, the fields in which Washtech members work are commonly considered
`part of the same job market. Indeed, the 2016 OPT Program Rule consistently refers to the “STEM field” to
`describe the job market in question, and DHS maintains a list of fields within the STEM umbrella on its website
`pursuant to 81 Fed. Reg. 13,118. See Washtech’s Opp’n at 8, 13; see also STEM Designated Degree Program List,
`U.S. Immigration Customs and Enforcement,
`https://www.ice.gov/sites/default/files/documents/Document/2016/stem-list.pdf. Sawade, Blatt, and Smith all work
`in professions that are on DHS’s list, see Compl. ¶¶ 106, 137, 184, therefore qualifying them as STEM workers.
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`5
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`Washtech members to compete with foreign labor for employment opportunities. Washtech’s
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`Opp’n at 15.
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`In response to Washtech’s Complaint, the Government has filed a motion to dismiss,
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`arguing that Washtech lacks standing to challenge both the 1992 and 2016 OPT Program Rules,
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`that Washtech’s “challenge to the 1992 Rule is time-barred,” and that Washtech “fails to allege
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`any plausible claim for relief as to all counts as [Washtech] is not within the zone-of-interests
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`protected by [the F-1 visa statute] and because [Washtech] fails to plead facts satisfying Rule
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`12(b)(6)’s plausibility standard.” Gov’t’s Mot. at 2. The Court will address each of the
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`Government’s arguments in turn.
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`II.
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`STANDARDS OF REVIEW
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`A. Rule 12(b)(1) Motion to Dismiss
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`Federal district courts are courts of limited jurisdiction, Kokkonen v. Guardian Life Ins.
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`Co., 511 U.S. 375, 377 (1994), and “[a] motion for dismissal under [Federal Rule of Civil
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`Procedure] 12(b)(1) ‘presents a threshold challenge to the court’s jurisdiction . . . .’” Morrow v.
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`United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v. Sessions,
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`835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, a district court is obligated to dismiss a claim if it
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`“lack[s] . . . subject matter jurisdiction[.]” Fed. R. Civ. P. 12(b)(1). Because “it is presumed that
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`a cause lies outside [a federal court’s] limited jurisdiction,” Kokkonen, 511 U.S. at 377, the
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`plaintiff bears the burden of establishing by a preponderance of the evidence that a district court
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`has subject matter jurisdiction, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
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`In deciding a motion to dismiss based upon lack of subject matter jurisdiction, the district
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`court “need not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal
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`Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001). Rather, “a court may consider
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`such materials outside the pleadings as it deems appropriate to resolve the question [of] whether
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`it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d
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`18, 22 (D.D.C. 2000); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.
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`Cir. 2005). Additionally, a district court must “assume the truth of all material factual
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`allegations in the complaint and ‘construe the complaint liberally, granting [the] plaintiff the
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`benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC,
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`642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir.
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`2005)). However, “the [p]laintiff’s factual allegations in the complaint . . . will bear closer
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`scrutiny in resolving a 12(b)(1) motion than resolving a 12(b)(6) motion for failure to state a
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`claim.” Grand Lodge, 185 F. Supp. 2d at 13–14 (citation and internal quotation marks omitted).
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`B. Rule 12(b)(6) Motion to Dismiss
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`A motion to dismiss under Rule 12(b)(6) tests whether the complaint properly “state[s] a
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`claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 8(a) requires only that a
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`complaint provide “a short and plain statement of the claim showing that the pleader is entitled to
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`relief.” Fed. R. Civ. P. 8(a)(2). But although “detailed factual allegations” are not
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`required, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
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`U.S. 544, 555 (2007)), a plaintiff must provide “more than an unadorned,
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`the-defendant-unlawfully-harmed-me accusation,” id. Rather, the “complaint must contain
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`sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
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`Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads
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`factual content that allows the court to draw [a] reasonable inference that the defendant is liable
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`for the misconduct alleged.” Id. A complaint alleging “facts [that] are ‘merely consistent with’ a
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`defendant’s liability . . . ‘stops short of the line between possibility and plausibility of entitlement
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`to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
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`“In evaluating a Rule 12(b)(6) motion, the Court must construe the complaint ‘in favor of
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`the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts
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`alleged.’” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v.
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`United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). However, conclusory allegations are not
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`entitled to an assumption of truth, and even allegations pleaded with factual support need only be
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`accepted insofar as “they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
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`Along with the allegations made within the four corners of the complaint, the court can consider
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`“any documents either attached to or incorporated in the complaint and matters of which [it] may
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`take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
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`1997).
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`A. Constitutional Standing
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`III. ANALYSIS
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`As the starting point of its analysis, the Court must “begin . . . with the question of
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`subject matter jurisdiction.” Am. Freedom Law Ctr. v. Obama, 106 F. Supp. 3d 104, 108
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`(D.D.C. 2015) (Walton, J.) (quoting Aamer v. Obama, 742 F.3d 1023, 1028 (D.C. Cir. 2014));
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`see also NO Gas Pipeline v. Fed. Energy Regulator Comm’n, 756 F.3d 764, 767 (D.C. Cir. 2014)
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`(“It is fundamental to federal jurisprudence that Article III courts such as ours are courts of
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`limited jurisdiction. Therefore, ‘we must examine our authority to hear a case before we can
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`determine the merits.’” (quoting Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 47
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`(D.C. Cir. 1999))). “Article III of the Constitution limits the jurisdiction of federal courts to
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`‘Cases’ and ‘Controversies.’” Susan B. Anthony List v. Driehaus, __ U.S. __, __, 134 S. Ct.
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`2334, 2341 (2014) (quoting U.S. Const., art. III, § 2). “The doctrine of standing gives meaning
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`to these constitutional limits of Article III by identify[ing] those disputes which are appropriately
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`resolved through the judicial process.” Id. (quoting Lujan, 504 U.S. at 560). “Indeed, the Court
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`‘need not delve into [a plaintiff’s] myriad constitutional and statutory claims [where] the
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`[plaintiff] lacks Article III standing . . . .’” Am. Freedom Law Ctr., 106 F. Supp. 3d at 108
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`(quoting Crow Creek Sioux Tribe v. Brownlee, 331 F.3d 912, 915 (D.C. Cir. 2003)). “This is
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`because a court may not ‘resolve contested questions of law when its jurisdiction is in doubt,’ as
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`‘[h]ypothetical jurisdiction produces nothing more than a hypothetical judgment—which comes
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`to the same thing as an advisory opinion, disapproved by [the Supreme] Court from the
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`beginning.’” Id. (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998)).
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`The irreducible constitutional minimum of standing contains three elements: (1) an injury
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`in fact; (2) causation; and (3) the possibility of redress by a favorable decision. Lujan, 504 U.S.
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`at 560–61. Furthermore, the doctrine of ripeness “shares the constitutional requirement of
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`standing that an injury in fact be certainly impending.” Chlorine Inst., Inc. v. Fed. R.R. Admin.,
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`718 F.3d 922, 927 (D.C. Cir. 2013) (quoting Nat’l Treasury Emps. Union v. United States, 101
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`F.3d 1423, 1427 (D.C. Cir. 1996)). “‘The party invoking federal jurisdiction bears the burden of
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`establishing’ standing,” Clapper v. Amnesty Int’l USA, __ U.S. __, __, 133 S. Ct. 1138, 1148
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`(2013) (citations omitted), and “each element must be supported in the same way as any other
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`matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of
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`evidence required at the successive stages of the litigation,” Susan B. Anthony List, __ U.S. at
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`__, 134 S. Ct. at 2342 (quoting Lujan, 504 U.S. at 561). “In analyzing whether [a plaintiff] has
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`standing at the dismissal stage,” the Court must “assume that [the plaintiff] states a valid legal
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`claim and ‘must accept the factual allegations in the complaint as true.’” Info. Handling Servs.,
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`Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003) (citations omitted)
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`(quoting Sturm, Ruger & Co. v. Chao, 300 F.3d 867, 871 (D.C. Cir. 2002)).
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` Furthermore, an association seeking to establish standing to sue on behalf of its members
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`must further show that “(1) at least one of its members would have standing to sue in his own
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`right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither
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`the claim asserted nor the relief requested requires that an individual member of the association
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`participate in the lawsuit.” Chamber of Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011)
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`(quoting Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002)). Here, the focus of the parties’
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`dispute is whether any of the Named Washtech Members would have standing to sue in his own
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`right, therefore providing Washtech standing to pursue the claims it has asserted.
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`1. Washtech’s Standing to Challenge the 1992 OPT Program Rule
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`Washtech first challenges the Government’s 1992 OPT Program Rule, alleging in Count I
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`of its Complaint that DHS’s “policy of allowing non-student aliens to remain in the United States
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`and work on student visas exceeds DHS authority under 8 U.S.C. § 1101(a)(15)(F)(i).” Compl.
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`at ¶¶ 54–61. In moving to dismiss Count I of Washtech’s Complaint, the Government contends
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`that Washtech “fails to satisfy any element of Article III standing as to its challenge to the 1992
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`[OPT Program] Rule.” Gov’t’s Mem. at 34–35 (“[Washtech] has not identified a single member
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`suffering a cognizable, let alone redressable, injury caused specifically by the pre-2008 OPT
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`program . . . .”). Washtech, in its opposition, fails to address the Government’s argument that it
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`lacks standing to challenge the 1992 OPT Program Rule. See generally Washtech’s Opp’n at
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`34–42 (addressing only the Government’s argument that its challenge to the 1992 OPT Program
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`Rule is time-barred, not the Government’s arguments that its challenge to the 1992 OPT Program
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`Rule is non-justiciable). Accordingly, the Court may treat the Government’s position regarding
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`Washtech’s lack of standing to pursue its challenge to the 1992 OPT Program Rule as conceded.
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`See Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, 284 F. Supp. 2d 15, 25 (D.D.C.
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`2003) (Walton, J.) (“It is well understood in this Circuit that when a plaintiff files an opposition
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`to a dispositive motion and addresses only certain arguments raised by the defendant, a court
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`may treat those arguments that the plaintiff failed to address as conceded.” (citations omitted)),
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`aff’d, 98 F. App’x 8 (D.C. Cir. 2004).
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`In any event, the Court concludes that Washtech has failed to establish “that at least one
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`identified member ha[s] suffered or would suffer harm” resulting from the 1992 OPT Program
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`Rule. Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009). In its Complaint, Washtech
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`represents that its named members applied for STEM jobs from April 2008 until March of 2016.
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`See Compl. ¶¶ 106–219. During that period of time, the 2008 OPT Program Rule was in effect
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`and remained in effect after August 12, 2015, when another member of this Court stayed vacatur
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`of the 2008 OPT Program Rule until DHS promulgated the 2016 OPT Program Rule, see
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`Washtech II, 156 F. Supp. 3d at 149, which DHS did not do until March 11, 2016, see 81 Fed.
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`Reg. 13,040. Therefore, the Court assumes that Washtech’s reliance on these job applications
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`from its named members implicates the OPT Program extension provided by the 2008 OPT
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`Program Rule, which is now defunct, and not the OPT Program established under the 1992 OPT
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`Program Rule. Notwithstanding this assumption, Washtech’s Complaint suggests that its named
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`members were unable to obtain the jobs for which they had applied because those jobs were
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`filled by beneficiaries of the extension provided by 2008 OPT Program Rule, rather than
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`beneficiaries of the original 1992 OPT Program Rule. See, e.g., Compl. ¶¶ 109–10, 138–40
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`(alleging that a named member applied for a STEM job with a particular employer followed by
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`the number of applications for OPT extensions made to the Citizenship and Immigration
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`Services for workers already employed by that employer).
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`Consequently, the Government correctly notes that “[n]othing in [Washtech’s] Complaint
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`articulates factual matter connecting any alleged injury to the [1992] OPT [P]rogram.” Gov’t’s
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`Mot. at 35. Thus, because Washtech failed to address the Government’s argument that its claims
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`regarding the 1992 OPT Program Rule are non-justiciable, and because Washtech has not
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`identified a member of its association who has suffered any injury arising from the 1992 OPT
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`Program and who would have standing to sue in his or her own right, Washtech does not have
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`standing to challenge the 1992 OPT Program Rule on behalf of its members.3 Accordingly, the
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`Court must dismiss Count I of Washtech’s Complaint.4
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`2. Washtech’s Standing to Challenge the 2016 OPT Program Rule
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`For Article III purposes, the injury-in-fact requirement “helps to ensure that the plaintiff
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`has a ‘personal stake in the outcome of the controversy.’” Susan B. Anthony List, __ U.S. at __,
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`134 S. Ct. at 2341 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). “An injury sufficient to
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`satisfy Article III must be concrete and particularized and actual or imminent, not conjectural or
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`3 The parties devote a significant portion of their submissions on whether Washtech’s challenge to the 1992 OPT
`Program Rule is time-barred by the six-year statute of limitations period provided by 28 U.S.C. § 2401(a), or is
`exempt from this statute of limitations period based on the reopening doctrine, which permits pursuit of an otherwise
`time-barred challenge to a prior rule if “the agency has undertaken a serious, substantive reconsideration of the
`existing rule . . . [or] substantively chang[ed it].” Mendoza v. Perez, 754 F.3d 1002, 1019 n.12 (D.C. Cir. 2014)
`(internal quotation marks and citation omitted); see also Washtech’s Opp’n at 34–42; Gov’t’s Reply at 15–18.
`Having concluded that Washtech does not have standing to challenge the 1992 OPT Program Rule, the Court deems
`it unnecessary to assess whether DHS’s promulgation of the 2016 OPT Program Rule substantively changed the
`1992 OPT Program Rule, such that it reopened the statute of limitations to challenge the 1992 OPT Program Rule.
`
` 4
`
` Washtech argues that “[a]n order dismissing Washtech’s challenge to the entire OPT program would be
`inconsistent with the [District of Columbia] Circuit’s holding in Washtech II that the issues with the 2008 OPT
`[Program] Rule are moot.” Washtech’s Opp’n at 42. In other words, Washtech claims that “[i]f [it] can only
`challenge the provisions of the 2016 OPT [Program] Rule (and not the entire policy of authorizing guest[-]workers
`on F-1 student visas), the only thing [it] can accomplish in this action is to invalidate the 2016 OPT [Program]
`Rule.” Id. Therefore, Washtech contends that “[v]acating the 2016 OPT [Program] Rule would then restore the
`regulatory scheme that was previously in place: the 2008 OPT [Program] Rule that the [District of Columbia]
`Circuit held was moot.” Id. However, this is not so because the Circuit, in dismissing the appeal of Washtech II as
`moot, stated that “the 2008 [OPT Program] Rule is no longer in effect.” 650 Fed. App’x at 14. Thus, invalidating
`the 2016 OPT Program Rule would not leave in effect the 2008 OPT Program Rule, as that rule no longer exists;
`rather, the 1992 OPT Program Rule would remain in effect. Accordingly, the Court finds that this argument
`advanced by Washtech has no merit.
`
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`Case 1:16-cv-01170-RBW Document 32 Filed 04/19/17 Page 13 of 45
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`hypothetical. An allegation of future injury may suffice if the threatened injury is certainly
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`impending, or there is a substantial risk that the harm will occur.” Id. (citations and quotations
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`omitted). Furthermore, there must be “a sufficient causal connection between the injury and the
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`conduct complained of, and [ ] a likelihood that the injury will be redressed by a favorable
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`decision.” Id. (internal quotation marks and citation omitted).
`
`To demonstrate standing to challenge the 2016 OPT Program Rule, Washtech alleges that
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`its named members have suffered the following five injuries: (1) a deprivation of “procedural
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`right[s] to notice and comment [required by the APA],” Compl. ¶ 88, (2) “discrimination because
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`[the 2016 OPT Program Rule] requires employers to provide mentoring programs to OPT
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`participants that are not available to Washtech members,” id. ¶ 89, (3) “unfair competition with
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`foreign workers” due to taxation differences between the H-B1 visa program and the F-1 visa
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`program, id. ¶ 87, (4) a deprivation of “statutory labor protective arrangements,” id. ¶ 85, and (5)
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`“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
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`and are redressable by a favorable decision from the Court. See generally Compl. The Court
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`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
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`question of whether the OPT [P]rogram should be expanded beyond a year to notice and
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`comment.” Compl. ¶ 226. The Government argues that Washtech’s allegation is flawed because
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`it has not “establish[ed] an injury-in-fact flowing from the 2016 [OPT Program] Rule under the
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`procedural injury doctrine,” and because “DHS explicitly sought notice and comment on
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`precisely this issue, and many commenters commented on exactly this issue, including
`
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`Case 1:16-cv-01170-RBW Document 32 Filed 04/19/17 Page 14 of 45
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`[Washtech’s] two counsel in this case.” Gov’t’s Mem. at 32 (citing 80 Fed. Reg. at 63,382,
`
`63,385, 63,394).
`
`“Where [a] plaintiff[ ] allege[s] [an] injury resulting from [the] violation of a procedural
`
`right afforded to [him or her] by statute and designed to protect [his or her] threatened concrete
`
`interest, the courts relax—while not wholly eliminating—the issues of imminence and
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`redressability but not the issues of injury in fact or causation.” Ctr. for Law & Educ. v. Dep’t of
`
`Educ., 396 F.3d 1152, 1157 (D.C. Cir. 2005). Therefore, a plaintiff will “have standing only if
`
`. . . (1) the government violated [his or her] procedural rights designed to protect [his or her]
`
`threatened concrete interest, and (2) the violation resulted in injury to [his or her] concrete,
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`particularized interest.” Id.; see also Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 664–65 (D.C.
`
`Cir. 1996) (“[A] procedural-rights plaintiff must show not only that the defendant’s acts omitted
`
`some procedural requirement, but also that it is substantially probable that the procedural breach
`
`will cause the essential injury to the plaintiff’s own interest.”).
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`Washtech stumbles at the outset in its attempt to establish a procedural injury because it
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`has “failed to show that a procedural right sufficient for standing has been violated.” Ctr. for
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`Law & Educ., 396 F.3d at 1157. Washtech cannot genuinely demonstrate that DHS omitted or
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`failed to subject the question of whether the OPT Program should be expanded beyond twelve
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`months to notice and comment because DHS explicitly submitted this question for notice and
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`comment. See 80 Fed. Reg. at 63,385–86 (explaining the proposed increase of the STEM OPT
`
`extension period to twenty-four months, requesting “public comment on the proposed
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`[twenty-four]-month STEM OPT extension,” and noting a “particular[ ] interest[ ] in public input
`
`regarding whether [twenty-four] months is the appropriate duration . . . or whether a shorter or
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`longer duration is preferable, and why”).
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`Case 1:16-cv-01170-RBW Document 32 Filed 04/19/17 Page 15 of 45
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`Despite this critical oversight, Washtech argues that “DHS’s reliance in the 2016 OPT
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`[Program] Rule on its conclusions made without public notice and comment in the 2008 OPT
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`[Program R]ule deprived Washtech of its procedural right to proper public notice and comment.”
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`Washtech Opp’n at 19–20 (citing Haw. Longline Ass’n v. Nat’l Marine Fisheries Serv., 281 F.
`
`Supp. 2d 1, 37 (D.D.C. 2003) for the proposition that “[i]f an agency relies on subs