Case 1:16-cv-01170-RBW Document 50 Filed 07/01/19 Page 1 of 27
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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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
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`HOMELAND SECURITY, et al.,
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`Defendants.
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`____________________________________)
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`Civil Action No. 16-1170 (RBW)
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`MEMORANDUM OPINION
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`The plaintiff, the Washington Alliance of Technology Workers (“Washtech”), a
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`collective-bargaining organization representing science, technology, engineering, and
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`mathematics (“STEM”) workers, brings 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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`(1) the DHS’s 1992 regulation creating a twelve-month optional practical training (“OPT”)
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`program (the “OPT Program”) for nonimmigrant foreign nationals admitted into the United
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`States with an F-1 student visa, Pre-Completion Interval Training; F-1 Student Work
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`Authorization, 57 Fed. Reg. 31,954 (July 20, 1992) (codified at 8 C.F.R. pts. 214 & 274a) (the
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`“1992 OPT Program Rule”); and (2) the DHS’s 2016 regulation permitting eligible F-1 student
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`visa holders with STEM degrees to apply for an extension of their participation in the OPT
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`Program for up to an additional twenty-four months, Improving and Expanding Training
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`Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All
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`Eligible F-1 Students, 81 Fed. Reg. 13,040 (Mar. 11, 2016) (codified at 8 C.F.R. pts. 214 &
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`274a) (the “2016 OPT Program Rule”). See Complaint (“Compl.”) ¶¶ 1–5, 8. Currently pending
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`before the Court are (1) the Defendants’ Renewed Motion to Dismiss (“Gov’t’s 2d Mot. to
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`Dismiss”) and (2) the National Association of Manufacturers, the Chambers of Commerce of the
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`United States of America, and the Information Technology Industry Council’s (collectively, the
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`“Organizations”) Motion to Intervene (“Orgs.’ Mot. to Intervene”). Upon careful consideration
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`of the parties’ submissions,1 the Court concludes for the following reasons that it must deny the
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`Government’s renewed motion to dismiss and grant the Organizations’ motion to intervene.
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`I.
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`BACKGROUND
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`The Court has previously set forth the factual background of this case, see Wash. All. of
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`Tech. Workers v. U.S. Dep’t of Homeland Sec., 249 F. Supp. 3d 524, 531–33 (D.D.C. 2017)
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`(Walton, J.), aff’d in part, rev’d in part, 892 F.3d 332 (D.C. Cir. 2018), and therefore will not
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`recite it again here. The Court will, however, briefly summarize the procedural posture of this
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`case, which is pertinent to the resolution of the pending motions.
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`Washtech filed its Complaint on June 17, 2016. See Compl. at 1. As previously noted by
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`the Court,
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`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
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`1 In addition to the filings already identified, the Court considered the following submissions in rendering its
`decision: (1) the Defendants’ Motion to Dismiss Plaintiff’s Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and (6)
`(“Gov’t’s 1st Mot. to Dismiss”); (2) the Memorandum of Law in Support of Motion to Intervene (“Orgs.’ Mot. to
`Intervene Mem.”); (3) the Defendants’ Memorandum of Law in Support of Their Renewed Motion to Dismiss
`(“Gov’t’s 2d Mot. to Dismiss Mem.”); (4) the Plaintiff’s Response to Motion to Intervene (“Washtech’s Mot. to
`Intervene Opp’n”); (5) the Defendants’ Opposition to Putative Intervenors’ Motion to Intervene (“Gov’t’s Mot. to
`Intervene Opp’n”); (6) the Plaintiff’s Response to Defendants’ Renewed Motion to Dismiss (“Washtech’s 2d Mot.
`to Dismiss Opp’n”); (7) the Reply Memorandum of Law in Support of Motion to Intervene (“Orgs.’ Mot. to
`Intervene Reply”); (8) the Defendants’ Reply Brief in Support of Their Renewed Motion to Dismiss (“Gov’t’s 2d
`Mot. to Dismiss Reply”); (9) the Notice of Supplemental Authority (“Orgs.’ Supp. Not.”), and (10) the Response to
`Proposed Intervenors’ Notice of Supplemental Authority (“Washtech’s Resp.”).
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`2
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`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).
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`Wash. All. of Tech. Workers, 249 F. Supp. 3d at 533 (second alteration in original) (citations and
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`internal quotation marks omitted). On August 26, 2016, the Government moved to “dismiss this
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`lawsuit in its entirety . . . for lack of subject matter jurisdiction and failure to state a claim.”
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`Gov’t’s 1st Mot. to Dismiss at 2. On April 19, 2017, the Court granted the Government’s motion
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`to dismiss and dismissed Washtech’s Complaint in its entirety. See Wash. All. of Tech.
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`Workers, 249 F. Supp. 3d at 556. Specifically, the Court dismissed Count I of the Complaint
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`pursuant to Federal Rule of Civil Procedure 12(b)(1) “for lack of standing to challenge the 1992
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`OPT Program Rule” and dismissed Counts II through IV pursuant to Federal Rule of Civil
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`Procedure 12(b)(6) “due to Washtech’s failure to plausibly state claims that are entitled to
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`relief.” Id. On appeal, the District of Columbia Circuit “affirm[ed] th[is] [ ] [C]ourt’s dismissal
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`of Counts I, III[,] and IV,” but “reversed its dismissal of Count II.” Wash. All. of Tech Workers,
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`892 F.3d at 348. With respect to Count II, the Circuit reasoned that “whether Count II may
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`proceed remains in question” because, although “the six-year statute of limitations on . . .
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`[Washtech’s] challenge closed in 1998[,] Washtech asserts[] [ ] that it may still [raise its]
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`challenge . . . under the reopening doctrine,” id. at 345, and “if the DHS reopened the issue of
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`whether the OPT [P]rogram as a whole is statutorily authorized in its notice of proposed
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`rulemaking vis-à-vis the 2016 [OPT Program] Rule, its renewed adherence is substantively
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`reviewable, and the challenge to the entire program may proceed,” id. at 346 (citation and
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`internal quotation marks omitted). The Circuit “decline[d] to address the question [of whether
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`the reopening doctrine is applicable] in the first instance and le[ft] it for th[is] [ ] Court to address
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`on remand.” Id.
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`On remand, the Court ordered the Government to file a renewed motion to dismiss
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`addressing the issue of whether the reopening doctrine applies to Washtech’s challenge to the
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`OPT Program. See Order at 1–2 (Sept. 18, 2018), ECF No. 36. On October 18, 2018, the
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`Government filed its renewed motion to dismiss, seeking dismissal of Count II of Washtech’s
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`Complaint pursuant to Rule 12(b)(1) and (b)(6), see Gov’t’s 2d Mot. to Dismiss at 1, which
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`Washtech opposes, see generally Washtech’s 2d Mot. to Dismiss Opp’n. On that same day, the
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`Organizations filed their motion to intervene in this case. See Orgs.’ Mot. to Intervene at 1.
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`These motions are the subjects of this Memorandum Opinion.
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`A.
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`Rule 12(b)(1) Motion to Dismiss
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`II.
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`STANDARDS OF REVIEW
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`“Federal [district] courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life
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`Ins. Co. of Am., 511 U.S. 375, 377 (1994). Thus, the 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). “A motion for dismissal
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`under [Federal Rule of Civil Procedure] 12(b)(1) ‘presents a threshold challenge to the [C]ourt’s
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`jurisdiction.’” Morrow v. United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (Walton, J.)
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`(quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Because “[i]t is to be
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`presumed that a cause lies outside [a federal court’s] limited jurisdiction,” Kokkonen, 511 U.S. at
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`377, the plaintiff bears the burden of establishing by a preponderance of the evidence that the
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`Court has subject-matter jurisdiction, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
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`The Court must “assume the truth of all material factual allegations in the complaint and
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`‘construe the complaint liberally, granting [the] plaintiff the benefit of all inferences that can be
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`derived from the facts alleged.’” Am. Nat’l Ins. Co. v. Fed. Deposit Ins. Corp., 642 F.3d 1137,
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`1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).
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`However, “the [p]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny in
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`resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.”
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`Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C.
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`2001) (internal quotation marks omitted). The Court “need not limit itself to the allegations of
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`the complaint,” id. at 14; rather, the “[C]ourt may consider such materials outside the pleadings
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`as it deems appropriate to resolve the questions [of] whether it has jurisdiction [over] the case,”
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`Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000); see Jerome
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`Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
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`B.
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`Rule 12(b)(6) Motion to Dismiss
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`A complaint must contain “a short and plain statement of the claim showing that the
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`pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, to survive a motion to dismiss for
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`“failure to state a claim upon which relief may be granted,” Fed. R. Civ. P. 12(b)(6), the
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`complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
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`is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 570 (2007)). A “claim has facial plausibility when the plaintiff pleads
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`factual content that allows the [C]ourt to draw the reasonable inference that the defendant is
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`liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556); see Kowal v. MCI
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`Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (noting that the plaintiff is entitled to “the
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`benefit of all inferences that can be derived from the facts alleged”). Although the Court must
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`accept the facts pleaded as true, legal allegations devoid of factual support are not entitled to this
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`presumption. See, e.g., Kowal, 16 F.3d at 1276. In addition to allegations asserted within the
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`four corners of the complaint, the Court may also consider “any documents either attached to or
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`incorporated in the complaint and matters of which [it] may take judicial notice.” EEOC v. St.
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`Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
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`C.
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`Rule 24 Motion to Intervene
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`Federal Rule of Civil Procedure 24 provides for both intervention as of right and
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`permissive intervention. With respect to intervention as of right, Rule 24 provides in relevant
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`part that,
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`[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.
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`Fed. R. Civ. P. 24(a)(2). The District of Columbia Circuit has distilled this rule into four factors
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`for the Court to consider:
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`(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.”
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`Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (quoting Mova Pharm.
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`Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C. Cir. 1998)). An applicant “seeking to intervene as
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`of right must [also] demonstrate that it has standing under Article III of the Constitution.” Id. at
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`731–32.
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`Rule 24 also authorizes permissive intervention where, “[o]n timely motion,” an
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`applicant demonstrates that it “has a claim or defense that shares with the main action a common
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`question of law or fact.” Fed. R. Civ. P. 24(b)(1). “[P]ermissive intervention is an inherently
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`discretionary enterprise” for the Court. EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042,
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`1046 (D.C. Cir. 1998). However, the putative intervenor must ordinarily present: “(1) an
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`independent ground for subject matter jurisdiction; (2) a timely motion; and (3) a claim or
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`defense that has a question of law or fact in common with the main action.” Id. Additionally,
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`the Court “must consider whether the [requested] intervention will unduly delay or prejudice the
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`adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). “It remains . . . an open
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`question in this [C]ircuit whether Article III standing is required for permissive intervention.”
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`Defs. of Wildlife v. Perciasepe, 714 F.3d 1317, 1327 (D.C. Cir. 2013) (first alteration in original)
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`(quoting In re Endangered Species Act Section 4 Litig., 704 F.3d 972, 980 (D.C. Cir. 2013)).
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`III. ANALYSIS
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`The Organizations have represented that they take no position on the applicability of the
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`reopening doctrine and intend to proceed in this case only if the Government’s renewed motion
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`to dismiss is denied. See Orgs.’ Mot. to Intervene Mem. at 7. Therefore, the Court will first
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`address the Government’s renewed motion to dismiss and then, if necessary, address the
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`Organizations’ motion to intervene.
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`A.
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`The Government’s Renewed Motion to Dismiss
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`The Government moves to dismiss Washtech’s remaining claim (Count II) pursuant to
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`Rule 12(b)(1) and (b)(6), see Gov’t’s 2d Mot. to Dismiss at 1–2, arguing that “[b]ecause the
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`statute of limitations for Washtech’s challenge to the agency’s authorization of [the] OPT
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`[Program] expired on July 20, 1998, Washtech’s remaining claim is time-barred,” Gov’t’s 2d
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`Mot. to Dismiss Mem. at 13 (citation omitted), and that “[t]he reopening doctrine does not help
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`Washtech because [the] DHS did not reopen the issue of its authority to issue a general OPT
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`rule,” id. at 14. In response, Washtech contends that “[t]he substantive changes to the OPT
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`[P]rogram in the 2016 OPT [Program] Rule make [the Government’s] statute of limitations
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`argument inapplicable and permit Washtech to challenge whether the one-year OPT term is
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`within [the] DHS’s authority without resorting to the reopening doctrine.” Washtech’s 2d Mot.
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`to Dismiss Opp’n at 7. Alternatively, Washtech argues that “the 2016 OPT [Program] Rule is
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`reviewable under the reopening doctrine.” Id. at 8.
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`The Court first addresses Washtech’s argument that the Court need not “resort[] to the
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`reopening doctrine” because “[t]he substantive changes to the OPT [P]rogram in the 2016 OPT
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`[Program] Rule make [the Government’s] statute of limitations argument inapplicable and permit
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`Washtech to challenge whether the one-year OPT term is within DHS’s authority.” Washtech’s
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`2d Mot. to Dismiss Opp’n at 7. The Circuit has already concluded that Washtech’s “challenge to
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`the DHS’s authority to provide for OPT workers at all implicates the authority first granted by
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`the 1992 [OPT Program] Rule,” and thus, “the six-year statute of limitations on such a challenge
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`closed in 1998.” Wash. All. of Tech. Workers, 892 F.3d 332 at 345. This Court may not revisit
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`that holding. Washtech’s challenge is therefore time-barred unless the Court concludes that the
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`reopening doctrine is applicable.
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`Accordingly, the Court will assess the applicability of the reopening doctrine. The
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`Government argues that the 2016 OPT Program Rule is not reviewable under the reopening
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`doctrine because (1) “the 2015 N[otice of Proposed Rulemaking (the ‘2015 Notice’)] did not
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`suggest any change to the agency’s interpretation of its authority to authorize [the] OPT
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`[Program,]” and the “DHS expressly disclaimed reconsideration of that program” in its Notice,
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`Gov’t’s 2d Mot. to Dismiss Mem. at 17, and (2) “the 2016 [ ] OPT [Program Rule] added
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`nothing substantively to the OPT [P]rogram generally,” id. Washtech responds that the 2016
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`OPT Program Rule is reviewable under the reopening doctrine because (1) “the post-1992
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`rulemaking necessarily raises the question of whether the previous rulemaking [was] lawful,”
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`Washtech’s 2d Mot. to Dismiss Opp’n at 10; (2) “the rulemaking for the 2016 OPT [Program]
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`Rule was the first time that the public had the opportunity to comment on work authorizations
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`under the OPT [P]rogram,” id. at 14; and (3) the 2015 [N]otice . . . contained many changes to
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`the existing OPT [Program],” id. at 13. Alternatively, Washtech argues that even if the 2016
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`OPT Program Rule did not explicitly or implicitly reopen the OPT Program as a whole to
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`review, the 2016 OPT Program Rule constructively reopened the OPT Program to review
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`because “[t]he transformation of the OPT [P]rogram into a means to provide labor to industry
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`could not have been anticipated from the statements in the 1992 OPT [Program] Rule.” Id. at 16.
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`For the following reasons, the Court agrees with Washtech that the 2016 OPT Program Rule
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`reopened Washtech’s ability to challenge the DHS’s legal authority to implement the OPT
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`Program.
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`“The reopening doctrine, ‘well established in this [C]ircuit,’ is ‘an exception to statutory
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`limits on the time for seeking review of an agency decision.’” CTIA-Wireless Ass’n v. FCC,
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`466 F.3d 105, 110 (D.C. Cir. 2006) (quoting Nat’l Ass’n of Reversionary Prop. Owners v.
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`Surface Transp. Bd., 158 F.3d 135, 141 (D.C. Cir. 1998)). “The doctrine ‘arise[s] . . . where an
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`agency conducts a rulemaking or adopts a policy on an issue at one time, and then in a later
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`rulemaking restates the policy or otherwise addresses the issue again without altering the original
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`decision.’” Id. (alterations in original) (quoting Nat’l Ass’n of Reversionary Prop. Owners, 158
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`F.3d at 141). “It is designed ‘to ensure that when the agency . . . by some new promulgation
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`creates the opportunity for renewed comment and objection, affected parties may seek judicial
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`review, even when the agency decides not to amend the long-standing rule at issue.’” P & V
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`Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021, 1024 (D.C. Cir. 2008) (alteration in
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`original) (internal quotation marks omitted) (quoting Gen. Motors Corp. v. EPA, 363 F.3d 442,
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`449–50 (D.C. Cir. 2004)). “The doctrine only applies, however, where the entire context
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`demonstrates that the agency ‘ha[s] undertaken a serious, substantive reconsideration of the
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`[existing] rule.’” Id. (alterations in original) (first quoting Pub. Citizen v. Nuclear Regulatory
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`Comm’n, 901 F.2d 147, 150 (D.C. Cir. 1990); then quoting Nat’l Mining Ass’n v. U.S. Dep’t of
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`Interior, 70 F.3d 1345, 1352 (D.C. Cir. 1995)). In Ohio v. EPA, the Circuit
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`inferred that an agency has reopened a previously decided issue in a case where the
`agency (1) proposed to make some change in its rules or policies, (2) called for
`comments only on new or changed provisions, but at the same time (3) explained
`the unchanged, republished portions, and (4) responded to at least one comment
`aimed at the previously decided issue.
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`Pub. Citizen v. Nuclear Reg. Comm’n, 901 F.2d 147, 150 (D.C. Cir. 1990) (citing Ohio v. EPA,
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`838 F.2d 1325, 1328 (D.C. Cir. 1988)).
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`Here, the four factors articulated in Ohio are satisfied. First, the 2015 Notice
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`demonstrates that the DHS “proposed to make some change in its rules or policies.” Pub.
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`Citizen, 901 F.2d at 150; see Improving and Expanding Training Opportunities for F-1
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`Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students,
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`80 Fed. Reg. 63,376, 63,376 (Oct. 19, 2015) (codified at 8 C.F.R. pts. 214 & 274a) (the “2015
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`Notice”) (“The . . . []DHS[] proposes to amend its F-1 nonimmigrant student visa regulations on
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`optional practical training (OPT) for certain students with degrees in . . . []STEM[] from U.S.
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`institutions of higher education. Specifically, the proposal would allow such F-1 STEM students
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`who have elected to pursue [twelve] months of OPT in the United States to extend the OPT
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`period by [twenty-four] months.”). Second, the 2015 Notice “called for comments only on new
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`or changed provisions.” Pub. Citizen, 901 F.2d at 150; see 2015 Notice, 80 Fed. Reg. at 63,377
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`(requesting comments on “changes to the current OPT [P]rogram by lengthening the extension of
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`the OPT period for certain F-1 students who have earned STEM degrees”). Third, the DHS’s
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`2015 Notice “explained the unchanged, republished portions” of the proposed 2016 OPT
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`Program Rule. Pub. Citizen, 901 F.2d at 150; see 2015 Notice, 80 Fed. Reg. at 63,380–81
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`(providing background information on the OPT Program); 2016 OPT Program Rule, 81 Fed.
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`Reg. at 13,044–45 (same). And finally, the DHS “responded to at least one comment aimed at
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`the previously decided issue” of the statutory authorization for the OPT Program. Pub. Citizen,
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`901 F.2d at 150; see 2016 OPT Program Rule, 81 Fed. Reg. at 13,058–62 (responding to
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`comments “concerning the legal authority underpinning the OPT [P]rogram”).
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`However, the Circuit has cautioned that although
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`the four factors mentioned in . . . Ohio are indeed relevant evidence of reopening,
`[ ] the [C]ourt cannot stop there. It must look to the entire context of the rulemaking
`including all relevant proposals and reactions of the agency to determine whether
`an issue was in fact reopened. If in proposing a rule the agency uses language that
`can reasonably be read an as invitation to comment on portions the agency does not
`explicitly propose to change, or if in responding to comments the agency uses
`language that shows that it did in fact reconsider an issue, a renewed challenge to
`the underlying rule or policy will be allowed.
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`Pub. Citizen, 901 F.2d at 150.
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`On the one hand, the 2015 Notice does not “use[] language that can reasonably be read as
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`an invitation to comment on the portions the agency does not explicitly propose to change.” Id.
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`As the Government correctly observes, see Gov’t’s 2d Mot. to Dismiss Mem. at 15, the 2015
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`Notice sought only comments related to “changes to the current OPT [P]rogram by lengthening
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`the extension of the OPT period for certain F-1 students who have earned STEM degrees.” 2015
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`Notice, 80 Fed. Reg. at 63,377. Additionally, the 2016 OPT Program Rule explicitly stated that
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`“[t]o the extent that comments challenging [the] DHS’s legal authority concerned the OPT
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`[P]rogram generally, such comments are outside the scope of this rulemaking, which relates
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`specifically to the availability of STEM OPT extensions” and that the “DHS did not propose to
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`modify the general post-completion OPT [P]rogram in the proposed rule.” 2016 OPT Program
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`Rule, 81 Fed. Reg. at 13,059. The Circuit has found that a similar disclaimed weighed against
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`finding that an agency reopened an issue. See Am. Road & Transp. Builders Ass’n v. EPA, 588
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`F.3d 1109, 1115 (D.C. Cir. 2009) (“conclud[ing] that [the agency] did not reopen reconsideration
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`of the regulations [the plaintiff] asked it to revise” because, inter alia, the agency “sa[id]
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`explicitly in its Notice of Proposed Rulemaking that it was not proposing to adopt the . . .
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`changes requested by [the plaintiff] in its petition” (fifth alteration in original) (internal quotation
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`marks omitted)).
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`On the other hand, “in responding to comments[,] the [DHS] use[d] language that
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`show[ed] that it did in fact reconsider” its statutory authority for the OPT Program. Pub. Citizen,
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`901 F.2d at 150. Specifically, the final version of the 2016 OPT Program Rule demonstrates that
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`the DHS responded to comments regarding its statutory authority for the OPT Program and did
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`much more than “briefly reiterat[e] its prior reasoning” regarding its statutory authority for the
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`OPT Program. Am. Iron & Steel Inst. v. EPA, 886 F.2d 390, 398 (D.C. Cir. 1989); see 2016
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`OPT Program Rule, 81 Fed. Reg. at 13,058–62. In the 1992 OPT Program Rule, the only
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`discussion of the DHS’s statutory authority to implement the OPT Program consisted of a list of
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`statutory provisions. See 1992 OPT Program Rule, 57 Fed. Reg. at 31,955 (“The authority
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`citation for part 214 continues to read as follows: Authority: 8 U.S.C. 1101, 1103, 1184, 1186a; 8
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`CFR part 2.”); see also id. at 31,960 (“The authority citation for part 274a continues to read as
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`follows: Authority: 8 U.S.C. 1101, 1103, 1324a, 8 CFR part 2.”). By contrast, in the 2016 OPT
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`Program Rule, in addition to relying on the provisions cited in the 1992 OPT Program Rule as
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`support for the DHS’s “longstanding interpretation of the INA,” see 2016 OPT Program Rule, 81
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`Fed. Reg. at 13,059 (citing 8 U.S.C. §§ 1103(a), 1103(a)(1), 1101(a)(15)(F)(i), and 1184(a)(1) as
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`support for the proposition that “the INA endows the Secretary with broad discretion to
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`Case 1:16-cv-01170-RBW Document 50 Filed 07/01/19 Page 13 of 27
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`promulgate regulations establishing the time and conditions under which such aliens may be
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`admitted”), the DHS provided two additional justifications for its legal authority to implement
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`the OPT Program: (1) “the longstanding congressional recognition of that interpretation,” see id.;
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`and (2) another member of this Court’s analysis of Washtech’s challenge to a previous iteration
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`of the 2016 OPT Program Rule promulgated in 2008 (the “2008 OPT Program Rule”), see id. at
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`13,059–60 (citing Wash. All. of Tech Workers v. U.S. Dep’t of Homeland Sec., 156 F. Supp. 3d
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`123 (D.D.C. 2015), judgment vacated, appeal dismissed, 650 F. App’x 13 (D.C. Cir. 2016)).
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`New justifications for an established rule weigh in favor of finding a reopening. See CTIA-
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`Wireless Ass’n, 466 F.3d at 112 (concluding that plaintiff’s challenge to an agency order was
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`reviewable under the reopening doctrine because, inter alia, “the NPA Order indisputably
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`offer[ed] two new justifications not found in the 1990 Order or 1995 Order” (emphases
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`omitted)); cf. P & V Enters., 516 F.3d at 1025 (concluding that a press release by the agency did
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`not reopen the plaintiff’s challenge to the agency’s rule because “[i]t neither responded to
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`comments nor presented new justifications for retaining the [ ] rule”). Accordingly, looking at
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`the “entire context of the rulemaking,” Pub. Citizen, 901 F.2d at 150, the Court concludes the
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`2016 OPT Program Rule’s new justifications for the DHS’s authority to implement the OPT
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`Program outweighs any disclaimers suggesting that the DHS did not invite comments on that
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`issue.
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`The Government’s arguments against finding that the DHS reopening the issue of its
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`statutory authority are unavailing. First, while the Government does not contest that the DHS
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`responded to comments regarding its legal authority to implement the OPT Program, see Gov’t’s
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`2d Mot. to Dismiss Mem. at 13–17, it argues that in responding to those comments, the DHS
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`“did not reopen the question of statutory authority” because “mechanically describing the history
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`Case 1:16-cv-01170-RBW Document 50 Filed 07/01/19 Page 14 of 27
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`of a regulatory program or referring back to that history does not reopen prior iterations of a rule
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`to an [Administrative Procedure Act (‘APA’)] challenge,” id. at 15. Relying on American Iron
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`and Steel Institute v. EPA for the proposition that “the ‘reopening’ rule of Ohio v. EPA is not a
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`license for bootstrap procedures by which petitioners can comment on matters other than those
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`actually at issue, goad an agency into a reply, and then sue on the grounds that the agency had re-
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`opened the issue,” Am. Iron & Steel Inst. v. EPA, 886 F.2d 390, 398 (D.C. Cir. 1989), the
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`Government argues that that “[t]his same maneuver is at the core of Washtech’s reopening
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`argument,” Gov’t’s 2d Mot. to Dismiss Mem. at 16. However, American Iron and Steel Institute
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`is distinguishable from the case at hand. In American Iron and Steel Institute, the Circuit
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`concluded that the agency did not “reopen the question” at issue because “[t]he [agency’s]
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`discussion [of that issue] lacked any sustained attempt to reiterate the reasons it had offered less
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`than two years earlier,” and, in response to comments on the issue, the agency “responded by
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`stating that it reaffirm[ed] its previous position and at most briefly reiterat[ed] its prior
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`reasoning.” Am. Iron & Steel Inst., 886 F.2d at 398 (emphasis omitted) (alteration in original)
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`(internal quotation marks omitted); cf. Council Tree Commc’ns, Inc. v. FCC, 324 F. App’x 3, 5
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`(D.C. Cir. 2009) (“Merely acknowledging another federal entity’s argument is not enough to
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`constitute reopening, particularly when, as here, the acknowledgment is in a cursory footnote that
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`summarily dismisses that argument.”). As discussed above, in responding to comments
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`regarding its legal authority to implement the OPT Program, the DHS offered new justifications
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`for its legal authority to implement the OPT Program. Second, the Government argues that “the
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`[2015 Notice] did not suggest any change to the agency’s interpretation of its authority to
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`authorize [the] OPT [Program]” and that the “DHS expressly disclaimed reconsideration of th[e]
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`[OPT] [P]rogram.” Gov’t’s 2d Mot. to Dismiss Mem. at 17. However, the Court has already
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`Case 1:16-cv-01170-RBW Document 50 Filed 07/01/19 Page 15 of 27
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`concluded that this disclaimer does not outweigh the DHS’s language showing that it
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`reconsidered its authority to implement the OPT Program, which supports that it reopened the
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`issue. Finally, the Government argues that “the 2016 [ ] OPT [Program] Rule added nothing
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`substantively to the OPT [P]rogram generally.” Gov’t’s 2d Mot. to Dismiss Mem. at 17. The
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`Court notes that the reopening doctrine does not require a change to an agency decision, but
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`rather can be applied to reconsideration of an agency decision, even if the agency ultimately
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`reaffirms and does not alter its decision. See, e.g., CTIA-Wireless Ass’n, 466 F.3d at 110 (“The
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`[reopening] doctrine ‘arise[s] . . . when an agency conducts a rulemaking or adopts a policy on
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`an issue at one time, and then in a later rulemaking restates the policy or otherwise addresses the
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`issue again without altering the original decision.’” (emphasis added) (second and third
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`alterations in original) (quoting Nat’l Ass’n of Reversionary Prop. Owners, 158 F.3d at 141)).
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`Whether the 2016 OPT Program Rule altered the 1992 OPT Program Rule is therefore of no
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`consequence to the Court’s reopening analysis.
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`Thus, the Court concludes that the 2016 OPT Program Rule reopened the issue of the
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`DHS’s statutory authority to implement the OPT Program and Washtech’s challenge to that
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`authority is timely. Accordingly, the Government’s renewed motion to dismiss must be denied.2
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`B.
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