UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
WASHINGTON ALLIANCE OF )
TECHNOLOGY WORKERS, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-529 (ESH)
)
U.S. DEPARTMENT OF HOMELAND )
SECURITY )
)
Defendant. )
)
_________________________________________ )
MEMORANDUM OPINION
Defendant Department of Homeland Security (“DHS”) has moved under Federal Rule of
Civil Procedure 60(b)(6) for limited relief from the Court’s August 12, 2015 Order. (Def.’s Mot.
for Limited Relief [ECF No. 47].) In relevant part, that Order vacated on procedural grounds an
interim final rule promulgated by DHS, but it stayed the effect of vacatur for six months in order
to allow DHS to cure those procedural defects. (See Mem. Op. [ECF No. 43] at 37 (issued Aug.
12, 2015).) At present, the stay is set to expire on February 12, 2016. (See Aug. 12, 2015
Order.) DHS now seeks to extend the stay by approximately ninety days, which it claims is
necessary in order to issue a new rule in place of the vacated interim rule, thereby avoiding a
regulatory gap. (Def.’s Mot. for Limited Relief at 1.) Plaintiff opposes DHS’s motion, arguing
that (1) the Court lacks jurisdiction to grant the requested relief due to plaintiff’s pending appeal
to the D.C. Circuit, and (2) DHS fails to show “extraordinary circumstances” warranting relief
under Rule 60(b)(6). (See Pl.’s Opp’n [ECF No. 49] at 5-6.) For the reasons that follow, DHS’s
motion for limited relief will be granted.
BACKGROUND
The facts of this dispute have been laid out in greater detail in the Court’s prior opinion.
(See Mem. Op. at 1-5.) As relevant here, DHS permits nonimmigrant foreign nationals on an F-1
student visa to receive optional practical training (“OPT”) during and after completing their
studies at a U.S. educational institution. See 8 C.F.R. § 214.2(f)(10)(ii). In April 2008, DHS
promulgated an interim final rule that extended the maximum OPT period from twelve months to
twenty-nine months for students with qualifying degrees in science, technology, engineering, or
math (“STEM”). See Extending Period of Optional Practical Training by 17 Months for F-1
Nonimmigrant Students with STEM Degrees and Expanding Cap-Gap Relief for All F-1
Students With Pending H-1B Petitions, 73 Fed. Reg. 18,944 (Apr. 8, 2008) (the “2008 Rule”).
DHS issued the 2008 Rule without notice and public comment. See id. at 18,950. It claimed that
the need “[t]o avoid a loss of skilled students through the next round of H-1B filings in April
2008” provided it with “good cause” to dispense with notice-and-comment under 5 U.S.C. §
553(b). See id.
Plaintiff filed suit in March 2014 raising numerous challenges to the OPT program, and
in particular, whether DHS had good cause to waive notice-and-comment before promulgating
the 2008 Rule. (See Compl. [ECF No. 1] ¶¶ 229-49.) In March 2015, the parties cross-moved
for summary judgment. (Pl.’s Cross Mot. for Summ. J. [ECF No. 25]; Def.’s Mot. for Summ. J.
[ECF No. 27].) DHS argued that “good cause” existed because an economic crisis would have
resulted if the 2008 Rule had not been immediately issued, as the U.S. high-tech sector would
have lost much-needed STEM workers to foreign competitors. (See Def.’s Mot. for Summ. J. at
42-45.) The Court held otherwise, finding no justification for waiving notice-and-comment—
even accepting the importance of STEM workers to the economy, DHS had long been aware of
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the purported “emergency” and had failed to act until 2008. (See Mem. Op. at 32-34.) The
Court further held that the appropriate remedy was vacatur of the 2008 Rule, but it found that
“substantial hardship for foreign students and a major labor disruption for the technology sector”
would result if “thousands of young workers had to leave their jobs in short order.” (Id. at 36.)
Therefore, it stayed the effect of vacatur for six months to allow DHS enough time to promulgate
a replacement rule. (Id. at 37.)
ANALYSIS
I. LEGAL STANDARD
A district court has discretion under Rule 60(b) to relieve a party from a final order for a
series of specific, enumerated reasons or for “any other reason that justifies relief.” See Fed. R.
Civ. P. 60(b)(6); Murray v. Dist. of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995). To invoke this
“catch-all” provision, the movant must demonstrate that (1) none of the enumerated grounds for
relief are applicable, Kramer v. Gates, 481 F.3d 788, 792 (D.C. Cir. 2007), (2) the motion was
“made within a reasonable time,” Fed. R. Civ. P. 60(c)(1), and (3) the requested relief is justified
by extraordinary circumstances that are beyond the movant’s control, Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993). The “extraordinary circumstances”
requirement derives from the principle that “[t]here must be an end to litigation someday, and
free, calculated, deliberate choices are not to be relieved from.” See Ackermann v. United States,
340 U.S. 193, 198 (1950). As such, the Court “must balance the interest in justice with the
interest in protecting the finality of judgments.” Summers v. Howard Univ., 374 F.3d 1188, 1193
(D.C. Cir. 2004).
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II. JURISDICTION
Plaintiff first argues that its pending appeal to the D.C. Circuit divests this Court of
jurisdiction to grant the requested relief, unless the Court first issues an indicative ruling and then
seeks remand of the case from the Circuit. (See Pl.’s Opp’n at 5-6.) It is true that the filing of a
notice of appeal confers jurisdiction on the court of appeals, but “the district court only
surrenders ‘its control over those aspects of the case involved in the appeal.’” See Horn &
Hardart Co. v. Nat'l Rail Passenger Corp., 843 F.2d 546, 548 (D.C. Cir. 1988) (quoting Griggs
v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). Moreover, divestiture during appeal
is a prudential, “judge-made doctrine designed to avoid the confusion and waste of time that
might flow from putting the same issues before two courts at the same time. It should not be
employed to defeat its purposes nor to induce needless paper shuffling.” Kern Oil & Ref. Co. v.
Tenneco Oil Co., 840 F.2d 730, 734 (9th Cir. 1988) (quoting 9 James Wm. Moore et al., Moore's
Federal Practice ¶ 203.11 (2d ed. 1987)). In Kern Oil, for instance, the Ninth Circuit held that
the district court retained jurisdiction to enter findings of fact while an appeal was pending,
because requiring a remand solely to enter the necessary findings would be unduly formalistic.
See 840 F.2d at 734 (“A better example of ‘needless paper shuffling’ would be hard to
imagine.”). In doing so, the court distinguished cases in which the district court impermissibly
amended findings of fact while an appeal was pending, which affected the issues being
considered by the appeals court. See 840 F.2d at 734.
Thus, the Court must determine whether consideration of the stay extension would create
confusion and inefficiency—because that issue is already before the Circuit—or whether seeking
remand would itself be nothing more than inefficient paper shuffling.
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Plaintiff states broadly that “remedy is a specific issue on appeal,” and therefore, the
Court has been divested of jurisdiction to grant the requested relief. (Pl.’s Opp’n at 5.)
However, plaintiff does not offer any further explanation than that, and a review of its opening
appellate brief makes clear that the issue before the Circuit is distinct from the issues raised here
by defendant’s motion. (See Opening Br. of Pl.-Appellant [Doc. 1589829], Case No. 15-5239
(D.C. Cir. Dec. 21, 2015).) In short, plaintiff has argued to the appeals court that it was improper
for this Court to stay its vacatur of the interim rule, because doing so enabled DHS to defeat the
purpose of notice-and-comment “by insincerely going through the motions” of re-implementing
the very same policy. (See id. at 54-55.) By contrast, DHS’s motion for limited relief does not
invite the Court to reconsider the propriety of its stay, but simply asks for an extension because
unexpected circumstances have made it impossible to avoid the regulatory gap that would be
caused by the stay’s February 12th expiration. (See Def.’s Mot. for Limited Relief at 1.) If, on
appeal, the Circuit ultimately agrees with plaintiff that the stay was improper, then nothing this
Court has said or done in temporarily extending the status quo will have impeded that
determination. Cf. Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d
841, 844 (D.C. Cir. 1977) (stay of injunctive relief pending appeal is generally “preventative, or
protective; it seeks to maintain the status quo” pending the appeals court’s determination);
Coastal Corp. v. Texas E. Corp., 869 F.2d 817, 820 (5th Cir. 1989) (district court retains
jurisdiction to modify stay of injunctive relief pending appeal, as long as the modification
preserves the status quo). 1
1
The parties dispute whether the Court’s stay is a type of injunction, which would allow it to be
modified under Rule 62(c) without first seeking remand from the Circuit. (See Def.’s Reply Br.
at 2-3.) Plaintiff cites the Supreme Court’s decision in Nken v. Holder, 556 U.S. 418 (2009), for
the proposition that a stay is not the same as an injunction. See Nken, 556 U.S. at 428-30.
Plaintiff is correct that Nken distinguished injunctions and stays pending appeal, see id., but this
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Because an extension of the stay would not have any effect on the issues currently on
appeal, the Court finds that it retains jurisdiction over defendant’s motion and need not seek
remand. See Committee Notes on Rules—2009, Fed. R. Civ. P. 62.1 (“If the district court
concludes that it has authority to grant relief without appellate permission, it can act without
falling back on the indicative ruling procedure”). In fact, if the stay expires as scheduled on
February 12, 2016, then that would almost certainly render plaintiff’s appeal of the stay moot.
(See Clerk’s Order [Doc. 1587112], Case No. 15-5239 (D.C. Cir. Dec. 7, 2015) (noting that
appellate briefing will not conclude until February 24, 2015); see also Monzillo v. Biller, 735
F.2d 1456, 1457 (D.C. Cir. 1984) (“Because the court's order has expired on its own terms, we
dismiss these appeals as moot.”).) In other words, rather than interfering with the D.C. Circuit’s
jurisdiction, a three-month extension would actually protect it, making it conceivable that the
Circuit could rule on the stay’s propriety before that issue becomes moot.
III. RULE 60(b)(6)
As discussed, Rule 60(b)(6) vests the Court with discretion to relieve DHS from the
effect of the August 12, 2015 Order for “any other reason that justifies relief,” provided that
certain conditions are met. See Fed. R. Civ. P. 60(b)(6). The parties do not dispute the fact that
the catch-all provision is properly invoked here, because none of the other grounds for relief
under Rule 60(b) is applicable. Nor do they dispute that the motion was made within a
Court did not issue a stay pending appeal. Instead, it exercised its “power to delay the [vacatur] .
. . for a reasonable period” in order to avoid “a temporary regulatory vacuum.” See Small
Refiner Lead Phase-Down Task Force v. U.S.E.P.A., 705 F.2d 506, 545 (D.C. Cir. 1983).
Moreover, the Court is considering a Rule 60(b)(6) request for relief, not a Rule 62(c) request for
injunctive modification. While it is true under Nken that injunctions and stays are not exactly the
same, the injunction analogy is instructive. Just as injunctive modifications during a pending
appeal are permissible if they maintain the status quo, a stay extension here would do the same.
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reasonable time—approximately thirty days after the close of the public comment period, when
DHS “determined with a reasonable degree of certainty” that it would not be able to meet the
February 12, 2016 deadline. (See Def.’s Mot. for Limited Relief at 4.) As such, the only issue
before the Court is whether “extraordinary circumstances” exist that warrant modifying the
Court’s previous Order.
DHS argues that its unexpected inability to promulgate a replacement rule before the
stay’s expiration constitutes extraordinary circumstances. (See id. at 5-9.) It states that, at the
time the Court entered its six-month stay, it believed it could meet the Court’s deadline and
thereby avoid a regulatory gap. (See Decl. of Rachel Canty [ECF No. 47-1] ¶ 5.) As such, it
published a Notice of Proposed Rulemaking on October 19, 2015, and sought comments from
the public. (Id. ¶¶ 3, 11.) However, it then received an “unexpected and unprecedented” public
response—50,500 comments, more than it received in response to its “next four most-
commented-on DHS rules combined.” (Id. ¶ 5.) Moreover, the content of those comments
suggested that the new rule would create “substantial uncertainty and confusion” without
extensive training of agency personnel and outreach to the regulated community. (See id. ¶ 6.) 2
Therefore, DHS argues, when considered alongside the hardship that a regulatory gap would
cause participating workers and employers, these difficulties constitute extraordinary
circumstances justifying limited relief. (See Def.’s Mot. for Limited Relief at 8-9.)
2
Plaintiff does not meaningfully dispute these assertions, but only questions how many
comments are significant enough to require a response by DHS. (See Pl.’s Opp’n at 7 n.1.)
Plaintiff also suggests that DHS has intentionally provided the public with conflicting guidance
in order “to maximize the vacatur order’s disruptive effect.” (Id. at 15.) Even if the Court were
to credit something an immigration law firm reports that a DHS field office allegedly told a third
party (the American Immigration Lawyers Association (id.)), it would not find bad faith merely
because DHS offered guidance and subsequently corrected it.
7
In response, plaintiff offers examples of circumstances that have been deemed
sufficiently “extraordinary” to justify relief: disclosure of a previously undisclosed fact so
material that it calls the initial judgment into question; gross attorney negligence; or a litigant’s
disabling illness, which would be exacerbated by participation in litigation. (See Pl.’s Opp’n at
4.) The implication, of course, is that DHS’s proffered circumstances do not meet the standard—
discovery of material facts that pre-date the judgment can be sufficient, but facts that did not
exist at the time of the judgment are not. Indeed, plaintiff argues that granting relief under Rule
60(b) where such circumstances arose after the judgment’s entry would “undermine the finality
of judgments . . . [and] make the litigated process open-ended.” (Id. at 17-18.) Plaintiff may
indeed be correct where relief is sought from a monetary judgment, but a change in
circumstances post-judgment is properly considered where the judgment has a prospective effect.
See Fed. R. Civ. P. 60(b)(5). 3
This case presents an unusual situation, in which the Court delayed the effectiveness of
its own judgment for six months, in order to allow DHS to engage in notice-and-comment
rulemaking and thereby avoid a regulatory gap. (See Mem. Op. at 37.) At that time, the Court
believed that six months would be sufficient for those purposes, and apparently so did DHS.
(See Decl. of Rachel Canty ¶ 5.) However, subsequent events have proven the Court’s timetable
for re-promulgation to be overly optimistic, thus warranting an extension. (See Def.’s Mot. for
Limited Relief at 1-2.) The Court finds such a circumstance analogous to relief under Rule
60(b)(5), which allows a court to modify an order granting an injunction or consent decree if
3
Further illustrating this point, plaintiff argued at a January 21, 2016 hearing that, if a plaintiff
who suffered property damage received a $100,000 judgment, no court would grant post-
judgment relief if the plaintiff later learned that the damage cost twice as much to repair. (See
Jan. 21, 2016 Hearing Tr. at 52:13-20.) But plaintiff’s own example addresses only relief from a
monetary judgment, not a judgment with prospective effect.
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changed circumstances make that relief “no longer equitable.” See Fed. R. Civ. P. 60(b)(5);
Horne v. Flores, 557 U.S. 433, 447 (2009) (Rule 60(b)(5) “provides a means by which a party
can ask a court to modify or vacate a judgment or order if a significant change either in factual
conditions or in law renders continued enforcement detrimental to the public interest”) (internal
quotations omitted). In other words, changed circumstances have proven the assumptions
underlying the stay’s length to be unrealistic, and thus ending the stay after only six months is no
longer equitable.
By the same token, the equities that warranted a stay in the first place—undue hardship to
STEM OPT participants and employers—remain the same. The significance of that hardship
cannot be overstated. According to DHS, there are approximately 23,000 STEM OPT
participants; 2,300 dependents of STEM OPT participants; 8,000 pending applications for STEM
OPT extensions; and 434,000 foreign students who might be eligible to apply for STEM OPT
authorizations. (See Jan. 21, 2016 Hearing Tr. at 39:16-20; 40:9-10, 20-21; 41:14-16.) If the
stay is not extended, many of these people would be adversely affected, either by losing their
existing work authorization, not being able to apply for the OPT extension, or not knowing
whether they will be able to benefit from the extension in the future. And of course, the U.S.
tech sector will lose employees, and U.S. educational institutions could conceivably become less
attractive to foreign students. The Court does not doubt that U.S. tech workers might feel some
adverse effect from a ninety-day extension, but it has not been provided with any reliable data to
support this proposition, and thus, it finds that the balance of equities clearly weighs in favor of
an extension. Therefore, the limited relief sought by DHS is warranted under Rule 60(b)(6).
Plaintiff’s remaining arguments to the contrary are unavailing. It first argues that relief
under Rule 60(b)(6) cannot be grounded on harm to third parties not present before the Court,
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and thus no consideration should be given to the disruption that would be imposed on those
workers currently present in the U.S. under a STEM OPT extension (or their employers). (See
Pl.’s Opp’n at 13 (noting that “[n]o OPT beneficiary or ‘tech sector’ employer ever sought to
appear as amicus in this proceeding”).) What plaintiff fails to recognize is that “Rule 60(b)(6) is
essentially an equitable catch-all provision,” see, e.g., In re Korean Air Lines Disaster of Sept. 1,
1983, 156 F.R.D. 18, 23 (D.D.C. 1994), which by necessity requires consideration of the public
interest. See U.S. Bancorp Mort. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994) (“As always
when federal courts contemplate equitable relief, our holding must also take account of the
public interest.”); see also In re Mid-Atl. Fuels, Inc., 121 B.R. 207, 211 (Bankr. S.D.W. Va.
1990) (granting relief under Rule 60(b)(6) in order to prevent migration of hazardous substances
and resultant harm to public). As such, in balancing the equities, the Court has properly
considered the significant hardship that a regulatory gap would cause for current and future
participants in the STEM OPT program.
Next, it argues that DHS’s difficulties are entirely self-inflicted, resulting from “strategic
choices” from which the Court should not now relieve it. (Pl.’s Opp’n at 6-16.) First, it claims
that DHS should have anticipated the Court’s August 12, 2015 vacatur and begun promulgating a
new rule as early as August 8, 2008, when it promulgated the now-vacated rule. (See id. at 7-8.)
That is, DHS should have recognized all along that it lacked good cause to do away with notice-
and-comment, as this Court ultimately held, and that failure to do so was self-inflicted. (See id.)
It also faults DHS for not taking corrective measures in response to an earlier challenge to the
2008 Rule, even though the district court and Third Circuit both found that the challenger lacked
standing. (See Pl.’s Opp’n at 8 (discussing Programmers Guild, Inc. v. Chertoff, 338 F. App’x
239 (3d Cir. 2009)).) The Court is not aware of any doctrine or case law that holds that a litigant
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should be penalized for advancing a non-frivolous argument, or for failing to anticipate the
argument’s rejection. DHS has argued to this Court that it was exempt from notice-and-
comment requirements, and although the Court ultimately held otherwise, DHS had a good faith
basis to make that argument. The mere fact that DHS did not take corrective action years earlier,
in anticipation of the Court’s 2015 ruling, is not a “self-inflicted” wound that disqualifies it from
relief.
Similarly, plaintiff argues that the need to train DHS staff and educate the public about
the new rule is also self-inflicted, because DHS made the “strategic choice” to make a
“comprehensive rule change[].” (See Pl.’s Opp’n at 10-12.) Here, plaintiff is arguing out of both
sides of its mouth. On one hand, it faults DHS for offering a “meaningless, pro forma notice and
comment period” when it had already decided to reaffirm the 2008 policy (see id. at 19-23); on
the other hand, it faults DHS for offering a replacement rule that varies from the original (see id.
at 10-12). The Court stayed its vacatur in order to allow DHS to “submit the 2008 Rule for
proper notice and comment,” but that stay was not conditioned upon the exact same rule being
promulgated again. (See Mem. Op. at 36-37.) In fact, DHS had a legal obligation to reevaluate
its policies in promulgating the new rule based on current circumstances. See 5 U.S.C. 553(c).
DHS’s decision to incorporate public feedback into the proposed rule—including feedback
offered by labor groups like plaintiff to “prevent[] adverse effects to U.S. workers” (see Def.’s
Mot. for Limited Relief at 1 n.1)—responds to the very criticisms leveled at it by plaintiff
throughout this litigation. Moreover, the confusion felt by commenters was by no means a
foregone conclusion once DHS decided to amend the 2008 Rule. See Improving and Expanding
Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap
Relief for All Eligible F-1 Students, 80 Fed. Reg. 63,375 (Oct. 19, 2015) (proposed changes to
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2008 Rule would include (1) extending the 17-month STEM OPT extension to 24 months, (2)
adding the possibility of a second 24-month extension, and (3) creating an employer certification
process designed to protect U.S. workers). Finally, there is no suggestion in the record that DHS
has dragged its feet in any way in issuing the new rule. To the contrary, it is undisputed that
DHS has taken an “‘all-hands-on-deck’ approach, in which multiple offices from throughout
DHS and other agencies helped develop and review the draft regulation on an expedited basis.”
(See Decl. of Rachel Canty ¶ 9.) As such, the Court finds no merit to the argument that the
changes proposed by DHS—or the uncertainty those changes have occasioned—disqualify DHS
from the limited relief it seeks here.
Finally, plaintiff argues that DHS has failed to give proper notice-and-comment for the
2015 Proposed Rule (see Pl.’s Opp’n at 19-23), but that issue is not before the Court at this time.
The only issue pending now is whether vacatur of the prior rule should be stayed for an
additional ninety days, and the Court has found that it should. Plaintiff indicates that, even if
DHS’s motion is granted, the parties will “be back in court litigating over [the replacement] rule”
and whether it was properly issued. (Id. at 22.) The Court has little reason to doubt this
assertion, but the replacement rule can only be challenged in future litigation.
In closing, the Court notes that it has considered the need to protect the finality of its
judgments, but as stated, it has concluded that the limited modification requested here is
warranted. Nonetheless, it emphasizes that it will not consider any additional requests for relief.
CONCLUSION
DHS’s motion for limited relief will be GRANTED, and the Court’s August 12, 2015
stay of vacatur will be extended until May 10, 2016. A separate order accompanies this
Memorandum Opinion.
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/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: January 23, 2016
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