Case 1:16-cv-01170-RBW Document 97 Filed 01/28/21 Page 1 of 38
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`Civil Action No. 16-1170 (RBW)
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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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`and
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`NATIONAL ASSOCIATION OF
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`MANUFACTURERS, et al.,
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` Intervenor-Defendants.
`____________________________________)
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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 DHS, the United States
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`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”), and the
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`intervenor-defendants, the National Association of Manufacturers, the Chamber of Commerce of
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`the United States of America, and the Information Technology Industry Council (collectively,
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`the “Intervenors”), see Complaint (“Compl.”) ¶¶ 8, 10–15, challenging, pursuant to the
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`Case 1:16-cv-01170-RBW Document 97 Filed 01/28/21 Page 2 of 38
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`Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06 (2012), (1) DHS’s 1992 regulation
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`creating a twelve-month optional practical training (“OPT”) program (the “OPT Program”) for
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`nonimmigrant foreign nationals admitted into the United States with an F-1 student visa, see
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`Pre-Completion Interval Training; F-1 Student Work Authorization, 57 Fed. Reg. 31,954 (July
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`20, 1992) (codified at 8 C.F.R. pts. 214 & 274a) (the “1992 OPT Program Rule”); see Compl.
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`¶¶ 54–61; and (2) DHS’s 2016 regulation permitting eligible F-1 student visa holders with
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`STEM degrees to apply for extensions of their participation in the OPT Program for up to an
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`additional twenty-four months, 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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`81 Fed. Reg. 13,040 (Mar. 11, 2016) (codified at 8 C.F.R. pts. 214 & 274a) (the “2016 OPT
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`Program Rule”), see Compl. ¶¶ 62–84. Currently pending before the Court are (1) the Plaintiff’s
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`Motion for Summary Judgment (“Pl.’s Mot.”); (2) the Defendants’ Opposition and Cross-Motion
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`for Summary Judgment (“Defs.’ Mot.”); (3) the Intervenors’ Motion for Summary Judgment
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`(“Intervenors’ Mot.”); and (4) the Plaintiff’s Motion to Strike the Brief Amici Curiae of
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`Institutions of Higher Education and Objections to Evidence Submitted in the Brief (“Pl.’s Mot.
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`to Strike”). Upon careful consideration of the parties’ submissions,1 the Court concludes for the
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`following reasons that it must deny Washtech’s motion for summary judgment, grant 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 Memorandum in Support of Defendants’ Opposition and Cross-Motion for Summary Judgment
`(“Defs.’ Mem.”); (2) the Statement of Points and Authorities in Support of Intervenors’ Combined Motion for
`Summary Judgment and Opposition to Plaintiff’s Motion for Summary Judgment (“Intervenors’ Mem.”); (3) the
`Brief of Amici Curiae of Institutions of Higher Education in Support of Intervenors (“Amici Br.”); (4) the Plaintiff’s
`Reply on its Motion for Summary Judgment and Response to Defendant[]s[’] and Intervenors’ Cross Motions for
`Summary Judgment (“Pl.’s Reply”); (5) the Defendants’ Reply in Support of Cross-Motion for Summary Judgment
`(“Defs.’ Reply”); (6) the Reply in Support of Intervenors’ Motion for Summary Judgment (“Intervenors’ Reply”);
`(7) the Memorandum of Points and Authorities in Support of Plaintiff’s Motion to Strike the Brief Amici Curiae of
`Institutions of Higher Education and Objections to Evidence Submitted in the Brief (“Pl.’s Mot. to Strike Mem.”);
`(8) the Amici Curiae Institutions of Higher Education’s Opposition to Plaintiff’s Motion to Strike (“Amici’s
`Opp’n”); and (9) the Reply in Support of Plaintiff’s Motion to Strike the Brief Amici Curiae of Institutions of
`Higher Education and Objections to Evidence Submitted in the Brief (“Pl.’s Mot. to Strike Reply”).
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`2
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`Government’s and the Intervenors’ motions for summary judgment, and deny Washtech’s
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`motion to strike.2
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`A.
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`Statutory and Legal Background
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`I.
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`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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`2 The Court concludes that the intervenors’ Brief Amici Curiae of Institutions of Higher Education in Support of
`Intervenors (the “Amici Curiae Brief”) “present[s] ideas, arguments, theories, insights, facts[,] or data that are not
`. . . found in the parties’ briefs.” N. Mariana Islands v. United States, No. 08-CV-1572, 2009 WL 596986, at *1
`(D.D.C. Mar. 6, 2009) (internal quotation marks omitted). Therefore, this “unique information or perspective [ ] can
`help the [C]ourt beyond the help that the lawyers for the parties are able to provide.” Hard Drive Prods. Inc. v. Does
`1–1,495, 892 F. Supp. 2d 334, 337 (D.C. Cir. 2012) (internal quotation marks omitted); see Ellsworth Assocs. v.
`United States, 917 F. Supp. 841, 846 (D.D.C. 1996) (granting “the non-party movants’ [m]otions to participate
`as amicus curiae” because the Court found that the “non-party movants [had] a special interest in th[e] litigation as
`well as a familiarity and knowledge of the issues raised therein that could aid in the resolution of this case”).
`Accordingly, the Court will exercise its broad “discretion to determine ‘the fact, extent, and manner’ of participation
`by the amicus[,]” Hard Drive Prods., 892 F. Supp. 2d at 337, and therefore deny Washtech’s motion to strike. See
`id. (noting that “[a]n amicus curiae, defined as ‘friend of the court,’ does not represent the parties but participates
`only for the benefit of the Court[,]” and that “it is solely within the Court’s discretion to determine ‘the fact, extent,
`and manner’ of participation by the amicus”). Washtech’s arguments in support of its motion to strike are
`unavailing. Washtech asserts that the Amici Curiae Brief “go[es] beyond attempting to supplement the record” and
`instead “tries to introduce outside statements as evidence that would not be admissible under any circumstances.”
`Pl.’s Mot. to Strike at 3 (asserting, inter alia, that the anecdotal statements contained in the Amici Curiae Brief “are
`made without oath or affirmation[,]” “are inadmissible hearsay[,]”and “lack relevance”). However, as the
`Intervenors correctly note, “[a]mici are not parties to this action, and they are not seeking to supplement the
`administrative record at issue here[,]” Amici’s Opp’n at 3 n.1, but rather, they are “supply[ing] the [Court] with [an]
`important perspective as [it] evaluate[s] the administrative record against the applicable legal standard[,]” id. at 3.
`Additionally, Washtech’s “reliance on cases addressing the evidentiary standards for sworn testimony is
`misplaced[,]” id. at 5, and “[Washtech] fails to provide a single example where those standards have been applied to
`amicus briefs[,]” id. Indeed, this Circuit has previously considered amicus briefs that contain anecdotal statements,
`including anonymous accounts. See, e.g., Br. of American Veterans Alliance, et al. as Amici Curiae in Supp. of
`Pls.-Appellees at 8–21, 23–25, Doe 2 v. Shanahan, 755 F. App’x 19 (D.C. Cir. 2019) (No. 1:17-cv-01597) (amicus
`brief containing several quoted statements from anonymous veterans and service members to advise the Court about
`the impact of the challenged Department of Defense policy barring openly transgender individuals from serving in
`the military); Br. of Immigrant Rights Advocates as Amici Curiae Supporting Pls.-Appellees at 12–14, Jane Doe v.
`Azar, 925 F.3d 1291 (D.C. Cir. 2019) (No. 18-5093) (amicus brief recounting experiences of individuals affected by
`the challenged Office of Refugee Resettlement policy precluding unaccompanied alien minors from obtaining an
`abortion).
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`Case 1:16-cv-01170-RBW Document 97 Filed 01/28/21 Page 4 of 38
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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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`1. 2008 OPT Program Rule
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`In April 2008, DHS issued an interim final rule with request for comments that extended
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`the period of OPT in which a student could participate by seventeen months for F-1
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`nonimmigrants with a qualifying STEM degree. See Extending Period of Optional Practical
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`Training by [Seventeen] Months for F-1 Nonimmigrant Students with STEM Degrees and
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`Expanding Cap-Gap Relief for All F-1 Students with Pending H-1B Petitions, 73 Fed. Reg.
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`18,944 (Apr. 8, 2008) (to be codified at 8 C.F.R. pts. 214 & 274a) (the “2008 OPT Program
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`Rule”). The goal of this extension was to help alleviate a “competitive disadvantage” for United
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`States employers recruiting STEM-skilled workers educated in the United States under the H-1B
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`visa program. See 73 Fed. Reg. 18,944. H-1B visas are temporary employment visas granted
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`annually to foreign nationals in “specialty occupations,” including many occupations in the
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`STEM field. 8 C.F.R. § 214.2(h)(1)(ii)(B). The number of H-1B visas issued on an annual basis
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`is limited, and the program is oversubscribed. See 73 Fed. Reg. at 18,946. The extension
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`provided by the 2008 OPT Program Rule sought to “expand the number of alien STEM workers
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`that could be employed in the [United States],” Compl. ¶ 46; see also 73 Fed. Reg. at 18,953, and
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`explicitly referenced the specific concern regarding the rigidity of the H-1B visa program, see
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`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.
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`at 252–53, but did have standing to challenge the 2008 OPT Program Rule, see id. at 253. The
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`Court vacated the 2008 OPT Program Rule because it had been promulgated without notice and
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`comment, see Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec. (“Washtech II”),
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`156 F. Supp. 3d 123, 149 (D.D.C. 2015), judgment vacated, appeal dismissed, 650 Fed.
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`App’x 13 (D.C. Cir. 2016) (“Washtech II Appeal”), and stayed vacatur of the rule to allow DHS
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`to promulgate a new rule, see id. On appeal of that decision to the District of Columbia Circuit,
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`Washtech alleged that the Court “had improperly allowed DHS to continue the policies
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`unlawfully put in place in the 2008 OPT [Program] Rule” and that “the OPT program was not
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`within DHS’s authority.” Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec.
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`(“Washtech III”), 249 F. Supp. 3d 524, 531–33 (D.D.C. 2017) (Walton, J.) (internal quotation
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`marks and alterations omitted), aff’d in part, rev’d in part, 892 F.3d 332 (D.C. Cir. 2018)
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`(“Washtech III Appeal”).
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`2. 2016 OPT Program Rule
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`In response to the ruling issued by this Court’s colleague, DHS issued a notice of
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`proposed rulemaking on October 19, 2015, requesting the submission of public comments prior
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`to 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). While 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.
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`at 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
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`(Mar. 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 the
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`judgment issued by this Court’s colleague in its entirety. See Washtech II Appeal, 650 Fed.
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`App’x at 14.
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`B. This Case
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`On June 17, 2016, Washtech initiated this action. See Compl. at 1. As previously noted
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`by this Court,
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`Washtech allege[d] that the 1992 OPT Program Rule and the 2016 OPT Program
`Rule exceed[ed] the authority of DHS [under] several provisions of the
`Immigration and Nationality Act (“INA”)[, Pub. L. No. 82-414, 66 Stat. 163
`(1952),] (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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`Washtech III, 249 F. Supp. 3d at 533 (third alteration in original) (citations and internal quotation
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`marks omitted), aff’d in part, rev’d in part, Washtech III Appeal, 892 F.3d 332. Thereafter, the
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`Government moved to dismiss “the Complaint on the grounds that this Court lacks subject matter
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`jurisdiction . . . and Washtech [ ] failed to state a claim upon which relief may be granted.” Id.
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`at 521. On April 19, 2017, the Court granted the Government’s motion to dismiss and dismissed
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`Washtech’s Complaint in its entirety. See id. at 556. Specifically, the Court dismissed Count I
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`of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) “for lack of standing to
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`challenge the 1992 OPT Program Rule,” and dismissed Counts II through IV pursuant to Federal
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`Rule of Civil Procedure 12(b)(6) “due to Washtech’s failure to plausibly state claims that are
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`entitled to relief.” Id.
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`On appeal, the District of Columbia Circuit “affirm[ed] th[is] [ ] [C]ourt’s dismissal of
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`Counts I, III[,] and IV,” but “reverse[d] its dismissal of Count II.” Washtech III Appeal,
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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 [ ] 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 in the first
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`instance [of whether the reopening doctrine is applicable] and le[ft] it for th[is] [ ] Court to
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`address on remand.” Id.
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`On remand, this 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 Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec.
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`(“Washtech IV”), 395 F. Supp. 3d 1, 8 (D.D.C. 2019) (Walton, J.). 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 Rules 12(b)(1) and 12(b)(6), and the Intervenors filed their motion to
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`intervene in this case. See id. On July 1, 2019, the Court denied the Government’s renewed
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`motion to dismiss, concluding that the 2016 OPT Program Rule “reopened the issue of [] DHS’s
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`statutory authority to implement the OPT Program[,]” and that therefore “Washtech’s challenge
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`to that authority is timely.” Id. at 15. In that same Order, the Court granted the Intervenors’
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`motion to intervene as of right. See id. at 15–21.
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`On September 25, 2019, Washtech filed its motion for summary judgment on Count II of
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`its Complaint, asking the Court “to . . . hold that [the 2016 OPT Program Rule] is in excess of
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`agency authority and [to] set it aside pursuant to the [APA.]” Pl.’s Mot. at 1. On November 25,
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`2019, the Government filed its opposition and cross-motion for summary judgment. See Defs.’
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`Mot. at 1. On that same date, the Intervenors filed their motion for summary judgment. See
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`Intervenors’ Mot. at 1–2. These motions are the subjects of this Memorandum Opinion.
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`STANDARD OF REVIEW
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`A moving party is entitled to summary judgment “if the movant shows that there is no
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`II.
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`genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
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`law.” Fed. R. Civ. P. 56(a). In the APA context, summary judgment is the mechanism for
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`deciding whether, as a matter of law, an agency action is supported by the administrative record
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`and is otherwise consistent with the standard of review under the APA. See, e.g., Citizens to
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`Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–16 (1971). But, because the district
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`court’s role is limited to reviewing the administrative record, the typical summary judgment
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`standards set forth in Federal Rule of Civil Procedure 56 are not applicable. See Stuttering
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`Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007). Rather, “[u]nder the APA,
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`it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the
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`administrative record, whereas ‘the function of the district court is to determine whether or not as
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`a matter of law the evidence in the administrative record permitted the agency to make the
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`decision it did.’” Id. (quoting Occidental Eng’g Co. v. Immigr. & Naturalization Serv., 753 F.2d
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`766, 769–70 (9th Cir. 1985)). In other words, “when a party seeks review of agency action
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`under the APA, the district judge sits as an appellate tribunal[,]” and “[t]he ‘entire case’ on
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`review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir.
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`2001).
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`The APA “sets forth the full extent of judicial authority to review executive agency
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`action for procedural correctness[.]” Fed. Commc’ns Comm’n v. Fox Television Stations, Inc.,
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`556 U.S. 502, 513 (2009). It requires a district court to “hold unlawful and set aside agency
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`action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or
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`otherwise not in accordance with [the] law[,]” 5 U.S.C. § 706(2)(A); “contrary to constitutional
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`right, power, privilege, or immunity[,]” id. § 706(2)(B); or “in excess of statutory jurisdiction,
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`authority, or limitations, or short of statutory right[,]” id. § 706(2)(C). “The scope of review
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`under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its
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`judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
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`Auto. Ins. Co., 463 U.S. 29, 43 (1983). “Nevertheless, the agency must examine the relevant
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`data and articulate a satisfactory explanation for its action including a ‘rational connection
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`between the facts found and the choice made.’” Id. (quoting Burlington Truck Lines v. United
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`States, 371 U.S. 156, 168 (1962). However, the district “[c]ourt[] ‘will uphold a decision of less
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`than ideal clarity if the agency’s path may reasonably be discerned.’” Pub. Citizen, Inc. v. Fed.
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`Case 1:16-cv-01170-RBW Document 97 Filed 01/28/21 Page 10 of 38
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`Aviation Admin., 988 F.2d 186, 197 (D.C. Cir. 1993) (quoting Bowman Transp., Inc. v.
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`Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)).
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`III. ANALYSIS
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`Washtech argues that it is entitled to summary judgment because the OPT 2016 Program
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`Rule is “contrary to law and in excess of DHS authority.” Pl.’s Mot. at 11. The Government
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`responds that it is entitled to summary judgment because “Washtech lacks Article III standing to
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`challenge the 2016 OPT [Program] Rule[,]” Defs.’ Mem. at 1, and alternatively, because “DHS
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`possesses statutory authority to authorize post-graduation [OPT] for F-1 students[,]” id. at 2.
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`While the Intervenors do not dispute Washtech’s standing to challenge the 2016 OPT Program
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`Rule, they join the Government in asserting that they are entitled to summary judgment because
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`“the OPT regulations represent a lawful exercise of executive branch authority.” Intervenors’
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`Mem. at 1. The Court will first address whether Washtech has demonstrated that it has
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`Article III standing to bring this case, and if it concludes that it does, then it will address whether
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`the 2016 OPT Program Rule exceeds DHS’s statutory authority.
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`A.
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`Article III Standing
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`The Circuit has already concluded, at least at the motion-to-dismiss stage of this
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`litigation, that “Washtech has standing [to challenge the 2016 Program Rule] under the
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`competitor standing doctrine.” Washtech III Appeal, 892 F.3d at 339. However, the
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`Government now argues that “[t]he Court should grant summary judgment to DHS because
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`Washtech has failed to establish, using the proof required at the summary judgment stage, that it
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`has standing to maintain this lawsuit.”3 Defs.’ Mem. at 10. Specifically, the Government asserts
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`3 As noted above, the Intervenors do not contest that Washtech has standing to bring this case. See generally
`Intervenors’ Mem.
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`that “Washtech has failed to provide specific, particularized evidence demonstrating that its three
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`identified members are in direct and current competition for jobs with students engaged in OPT.”
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`Id. Washtech, however, contends that it has standing to maintain this action pursuant to the
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`competitor standing doctrine, because it allegedly suffers “increased competition injury from
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`alien guestworkers on OPT.” Pl.’s Mot. at 9. Additionally, Washtech asserts in support of its
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`summary judgment motion that it has “submitted updated standing evidence . . . containing facts
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`that support the allegations made related to standing in the Complaint as well as affidavits of its
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`members.” Pl.’s Reply at 21.
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` The “irreducible constitutional minimum” of standing contains three elements: (1) an
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`injury-in-fact; (2) causation; and (3) the likely possibility of redress by a favorable decision.
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`Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). “The party invoking federal
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`jurisdiction bears the burden of establishing standing[,]” Clapper v. Amnesty Int’l USA, 568
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`U.S. 398, 412 (2013) (internal quotation marks omitted), and “each element must be supported in
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`the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the
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`manner and degree of evidence required at the successive stages of the litigation[,]” Lujan, 504
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`U.S. at 561. “[A]t the summary judgment stage, such a party ‘can no longer rest on [] mere
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`allegations[] but must set forth by affidavit or other evidence ‘specific facts.’” Clapper, 568 U.S.
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`at 412 (quoting Lujan, 504 U.S. at 561).
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` Additionally, 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 [or her]
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`own right, (2) the interests the association seeks to protect are germane to its purpose, and (3)
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`neither the claim asserted nor the relief requested requires that an individual member of the
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`association participate in the lawsuit.” Chamber of Com. v. Envtl. Prot. Agency, 642 F.3d 192,
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`199 (D.C. Cir. 2011) (quoting Sierra Club v. Envtl. Prot. Agency, 292 F.3d 895, 898 (D.C. Cir.
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`2002)). Here, the focus of the parties’ dispute is whether any of the named Washtech members
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`would have standing to sue in his or her own right, therefore providing Washtech standing to
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`pursue the claims it has asserted.4 See generally Pl.’s Mot. at 9; Defs.’ Mem. at 10–18. And,
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`considering the requirements for satisfying the competitor standing doctrine,5 the Court
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`concludes for the reasons that follow that Washtech has standing to bring this case.
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`First, Washtech has established that it has suffered an injury-in-fact under the competitor
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`standing doctrine. Washtech asserts that its members have been injured by the OPT 2016
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`Program Rule because the program “increase[s] competition injury from alien guestworkers on
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`OPT.” Pl.’s Mot. at 9. “The doctrine of competitor standing addresses the first requirement [of
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`standing] by recognizing that economic actors ‘suffer [an] injury[-]in[-]fact when agencies lift
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`regulatory restrictions on their competitors or otherwise allow increased competition’ against
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`them.” Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010) (second alteration in original)
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`(quoting La. Energy & Power Auth. v. Fed. Energy Regul. Comm’n, 141 F.3d 364, 367 (D.C.
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`Cir. 1998)). To establish competitor standing, a party in a particular market must “show an
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`4 Because the Government does not appear to dispute the second and third prongs of the associational standing test
`in its opposition and cross-motion for summary judgment, see generally Defs.’ Mem. at 10–18, the Court concludes
`that the Government has conceded the satisfaction of these two prongs. See Hopkins v. Women’s Div., Gen. Bd. of
`Glob. Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (Walton, J.) (“It is well understood in this Circuit that when
`a [party] files an opposition to a dispositive motion and addresses only certain arguments raised by the [moving
`party], a court may treat those arguments that the [party] failed to address as conceded.”). Therefore, the Court will
`solely address the first prong of the associational standing test—whether “at least one of [Washtech’s] members
`would have standing to sue in his [or her] own right,” Chamber of Com., 642 F.3d at 199—which in turn depends on
`whether Washtech has satisfied the requirements of competitor standing. Accordingly, this question will be the sole
`focus of the Court’s standing analysis.
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` Because the Government disputes only the injury and causation elements of standing for Washtech’s individual
`members, the Court will address only these two elements in determining whether Washtech has established standing
`on the basis of the competitor standing doctrine. See Defs.’ Reply at 11, 16 (asserting that the plaintiff must
`“affirmatively demonstrate [] causation” and that “no concrete injury has been shown at this stage”). Moreover, the
`Court notes that the Circuit has already determined that “Washtech’s injury is redressable by a favorable decision[,]”
`as “[a] court order invalidating the [OPT] 2016 [Program] Rule would eliminate workers from the STEM job market
`and therefore decrease competition for the STEM jobs pursued by Washtech’s members.” Washtech III Appeal, 892
`F.3d at 341.
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`actual or imminent increase in competition” in the relevant market, id. at 73, and “demonstrate
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`that it is a direct and current competitor whose bottom line may be adversely affected by the
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`challenged government action[,]” Mendoza v. Perez, 754 F.3d 1002, 1013 (D.C. Cir. 2014)
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`(quoting KERM, Inc. v. Fed. Commc’ns Comm’n, 353 F.3d 57, 60 (D.C. Cir. 2004) (emphasis in
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`original)); see also Arpaio v. Obama, 797 F.3d 11, 23 (D.C. Cir. 2015) (“Plaintiffs may claim
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`predictable economic harms from the lifting of a regulatory restriction on a direct and current
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`competitor, or regulatory action that enlarges the pool of competitors, which will almost
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`certainly cause an injury[-]in[-]fact to participants in the same market. But [this Circuit] ha[s]
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`not hesitated to find competitor standing lacking where the plaintiff’s factual allegations raised
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`only some vague probability that increased competition would occur.” (internal citations and
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`quotation marks omitted)).
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`Here, Washtech has presented specific facts, through affidavits and other evidence, to
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`establish that its members are direct and current competitors with F-1 student visa holders who
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`are working in the OPT program pursuant to DHS’s regulations. See Clapper, 568 U.S. at 412.
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`As Washtech correctly notes, “[f]or its summary judgment motion, [it] has submitted affidavits
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`from its members showing that they have worked in the computer job market for years and
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`continue to be active in that market[,]” Pl.’s Reply at 21; see Pl.’s Mot., Exhibit (“Ex.”) 5
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`(Declaration of Douglas J. Blatt) (“Blatt Decl.”); id., Ex. 6 (Declaration of Caesar Smith)
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`(“Smith Decl.”); id., Ex. 7 (Declaration of Rennie Sawade) (“Sawade Decl.”). Moreover, as
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`Washtech also correctly notes, “the OPT program increases the amount of foreign labor in the
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`[STEM] job market because that was DHS’s intent in creating the OPT extension for STEM . . .
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`graduates.” Pl.’s Reply at 21 (citing the 2008 OPT Program Rule) (stating that the changes made
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`by this rule were expected to increase the attractiveness of the OPT program, and that the size of
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`the increase could not be precisely estimated)); see also Press Release, The White House, Impact
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`Report: 100 Examples of President Obama’s Leadership in Science, Technology, and Innovation
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`(June 21, 2016), https://obamawhitehouse.archives.gov/the-press-office/2016/06/21/impact-
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`report-100-examples-president-obamas-leadership-science (last visited Jan. 5, 2021) (noting that,
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`as of June 2016, DHS estimated that there were 34,000 STEM students already participating in
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`the OPT Program as a result of the now-defunct 2008 OPT Program Rule and expected an
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`estimated growth to 92,000 participants within ten years). Accordingly, Washtech has
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`demonstrated that its members are “participating in the [STEM] labor market” in competition
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`with OPT workers, Mendoza, 754 F.3d at 1013, and that the OPT program “increase[s] [the]
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`supply of labor—and thus competition—in that market,” id. at 1011.
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`Consequently, Washtech has sufficiently demonstrated that DHS’s regulations “allow