395 F.Supp.3d 1
D.D.C.2019Background
- Washtech (a union) challenged DHS regulations: the 1992 OPT rule (creating 12-month OPT for F-1 students) and the 2016 rule (allowing a 24‑month STEM OPT extension). Litigation raised claims under the INA and APA, plus CRA and arbitrary-and-capricious challenges to the 2016 rule.
- District Court initially dismissed all counts; the D.C. Circuit affirmed most dismissals but reversed dismissal of Count II (challenge to DHS authority to authorize OPT), remanding to consider whether the reopening doctrine salvaged the time‑barred claim.
- On remand the Government moved to dismiss Count II as time‑barred and argued the 2016 rule did not reopen the 1992 rule; Washtech argued the 2016 rule either independently allowed review or it reopened the prior question.
- Several trade groups (National Association of Manufacturers, U.S. Chamber of Commerce, Information Technology Industry Council) sought to intervene to defend the OPT rules if the case survived dismissal.
- The Court held that the 2016 rule reopened DHS’s statutory‑authority question (so the challenge is timely), denied the Government’s renewed motion to dismiss, and granted the Organizations’ motion to intervene as of right.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Washtech's challenge to DHS authority over OPT is time‑barred or revived by the reopening doctrine | The 2016 STEM OPT rule substantively changed the program or otherwise allows direct review; alternatively, the 2016 rule reopened the legality of the entire OPT program | The underlying challenge was time‑barred (limitations ran in 1998) and the 2016 rule did not reopen the statutory‑authority issue | The court held the 2016 rule reopened the statutory‑authority issue, so the challenge is timely; Gov’t motion to dismiss denied |
| Whether the 2016 NPRM and final rule invited comment or reconsideration of DHS’s authority (i.e., reopening) | The 2015 notice and 2016 final rule gave the public its first meaningful opportunity to comment on OPT authority and presented new substantive aspects, constituting reopening | The 2015 notice only solicited comments on STEM extensions and expressly disclaimed reopening the general OPT program; DHS’s responses did not constitute reopening | The court applied Ohio v. EPA factors and found DHS’s responses and new justifications in the 2016 rule showed substantive reconsideration — reopening satisfied |
| Whether the putative intervenors (trade groups) have Article III/associational standing to intervene | Organizations said their members (e.g., Intel) would suffer substantial, concrete economic injury if the OPT program were vacated | Washtech contended intervenors lack cognizable interests and could not show probable member injury; Government did not contest standing | The court found associational standing: at least one member (Intel) likely would suffer economic harm; causation and redressability satisfied |
| Whether intervention as of right under Rule 24(a) is proper (timeliness, interest, impairment, adequacy of representation) | Organizations said motion timely (filed before answer; arose after Government’s apparent change), have legally protected interests, would be impaired if OPT vacated, and government may not adequately represent narrow private interests | Washtech argued delay and lack of standing; Government argued prematurity or adequate representation | The court found the motion timely, interests legally protected, impairment established, and minimal showing of inadequate representation met — intervention as of right granted |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (federal courts are courts of limited jurisdiction)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (plaintiff bears burden to establish jurisdiction)
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard for pleadings)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must be facially plausible)
- Fund for Animals, Inc. v. Norton, 322 F.3d 728 (Rule 24(a) intervention factors and associational‑standing guidance)
- Pub. Citizen v. Nuclear Regulatory Comm’n, 901 F.2d 147 (reopening doctrine and the Ohio factors)
- CTIA—Wireless Ass’n v. FCC, 466 F.3d 105 (reopening doctrine; new justifications can show reopening)
- Nat’l Ass’n of Reversionary Prop. Owners v. Surface Transp. Bd., 158 F.3d 135 (reopening doctrine articulation)
- Am. Iron & Steel Inst. v. EPA, 886 F.2d 390 (distinction where agency merely reaffirmed prior reasoning)