United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 20, 2018 Decided June 8, 2018
No. 17-5110
WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET
AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-01170)
John M. Miano argued the cause and filed briefs for the
appellant. Dale L. Wilcox and Michael M. Hethmon entered
appearances.
Scott G. Stewart, Attorney, United States Department of
Justice, argued the cause for the appellees. Glenn M. Girdharry
and Erez Reuveni, Assistant Directors, and Joshua S. Press,
Trial Attorney, were with him on the brief.
Before: HENDERSON, Circuit Judge, and EDWARDS and
GINSBURG, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: The
Washington Alliance of Technology Workers (Washtech), a
union representing workers throughout the country in the
Science, Technology, Engineering and Mathematics (STEM)
labor market, challenges United States Department of
Homeland Security (DHS) regulations that allow
nonimmigrant aliens temporarily admitted to the country as
students to remain in the country for up to three years after
finishing a STEM degree to pursue work related to their degree.
Washtech’s complaint alleged that the regulations exceed their
statutory authority, suffer from multiple procedural
deficiencies and are arbitrary and capricious. The district court
dismissed Washtech’s complaint in full, relying on a mixture
of grounds—standing; failure to state a plausible claim for
relief; and a deficient opposition to the DHS’s motion to
dismiss—depending on the precise claim at issue. As detailed
below, we affirm in part and reverse and remand in part.
I. BACKGROUND
The Immigration and Nationality Act of 1952 (INA), 8
U.S.C. §§ 1101 et seq., authorizes the DHS to admit certain
classes of nonimmigrant aliens. Nonimmigrant aliens are
foreign nationals who enter the country for fixed, temporary
periods of time pursuant to a visa. The F-1 student visa
authorizes admission of “an alien having a residence in a
foreign country which he has no intention of abandoning, who
is a bona fide student qualified to pursue a full course of study
and who seeks to enter the United States temporarily and solely
for the purpose of pursuing . . . a course of study . . . at” certain
academic institutions, including colleges and universities. 8
U.S.C. § 1101(a)(15)(F)(i).
The Congress provided that “admission to the United
States of any alien as a nonimmigrant shall be for such time
3
and under such conditions as the” DHS Secretary 1 “may by
regulations prescribe.” Id. § 1184(a)(1). The DHS has three
times—in 1992, 2008 and 2016—promulgated regulations that
allow nonimmigrant aliens with student visas to remain in the
country after finishing their degree to participate in the
workforce for a specified period of time. See Wash. All. of
Tech. Workers v. DHS, 857 F.3d 907, 909–10 (D.C. Cir. 2017).
A. 1992 Regulation
In 1992, the DHS promulgated a regulation that
established an “optional practical training” (OPT) program for
a nonimmigrant admitted with an F-1 student visa. Pre-
Completion Interval Training; F-1 Student Work
Authorization, 57 Fed. Reg. 31954 (July 20, 1992) (1992 Rule).
The regulation allowed a student to “apply . . . for authorization
for temporary employment for [optional] practical training
directly related to the student’s major area of study.” 8 C.F.R.
§ 214.2(f)(10)(ii)(A) (1992). The student “may be authorized”
to engage in such employment “[a]fter completion of all course
requirements for the degree” or “[a]fter completion of the
course of study” for which the student was granted the F-1 visa.
Id. § 214.2(f)(10)(ii)(A)(3), (4). The 1992 Rule authorized a
student to remain in the country for one year after completing
1
The Congress originally delegated authority to administer the
INA to the Immigration and Naturalization Service, housed in the
United States Department of Justice. In 2002, when it created the
Department of Homeland Security, the Congress transferred
responsibility for administering the INA to the DHS Secretary. See
Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005) (citing 6 U.S.C.
§§ 251(2), 252(a)(3), 271(b)). For consistency and ease of reference,
we refer to the DHS throughout the opinion as the responsible
government agency even though the INS exercised the relevant
authority before 2002.
4
his degree, see id. § 214.2(f)(11), if “engag[ed] in authorized
practical training following completion of studies,” id.
§ 214.2(f)(5)(i).
B. 2008 Regulation
In 2008, the DHS promulgated a regulation that authorized
an F-1 student visa holder with a STEM degree who was
participating in the OPT program to apply for an extension of
OPT of up to seventeen months. 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. 18944 (Apr. 8, 2008) (2008 Rule); 8 C.F.R.
§ 214.2(f)(10)(ii)(C) (2008). In 2014, Washtech filed a
complaint challenging the 2008 Rule and the district court
ultimately vacated the 2008 Rule. Wash. All. of Tech. Workers
v. DHS (Washtech I), 156 F. Supp. 3d 123 (D.D.C. 2015).
Although the district court held that the DHS had statutory
authority to create the OPT program, id. at 137–45, it held that
the DHS improperly issued the 2008 Rule without notice and
comment, id. at 145–47. The district court stayed vacatur to
allow the DHS to correct its error. Id. at 147–49.
C. 2016 Regulation
After Washtech I, the DHS issued a notice of proposed
rulemaking with a request for comments. 80 Fed. Reg. 63376
(Oct. 19, 2015). After comments, the DHS issued its final rule.
Improving and Expanding Training Opportunities for F-1
Nonimmigrant Students With STEM Degrees and Cap-Gap
Relief for All Eligible F-1 Students, 81 Fed. Reg. 13040 (Mar.
11, 2016) (2016 Rule). The 2016 Rule authorizes an F-1
student visa holder with a STEM degree who is participating in
the OPT program to “apply for an extension of OPT” of up to
twenty-four months. 8 C.F.R. § 214.2(f)(10)(ii)(C) (2016).
5
The 2016 Rule includes certain “safeguards” against
“adverse [effects] on U.S. workers,” 81 Fed. Reg. at 13042:
employers who want to participate in the program must attest,
inter alia, that the OPT student “will not replace a full- or part-
time, temporary or permanent U.S. worker,” 8 C.F.R.
§ 214.2(f)(10)(ii)(C)(10)(ii), and that the “duties, hours, and
compensation” of OPT workers “[will] be commensurate with”
those of “similarly situated U.S. workers,” id.
§ 214.2(f)(10)(ii)(C)(8).
After the 2016 Rule was promulgated, we “vacate[d]” as
“moot” the district court’s decision invalidating the 2008 Rule
“because the 2008 Rule is no longer in effect.” Wash. All. of
Tech. Workers v. DHS (Washtech II), 650 F. App’x 13, 14
(D.C. Cir. 2016).
D. Procedural History
In June 2016, Washtech filed a complaint challenging both
the 1992 Rule and the 2016 Rule. Washtech brought four
counts, alleging: (1) the 1992 Rule “exceeds” the DHS’s
statutory “authority”; (2) the 2016 Rule “is in excess of” the
DHS’s statutory “authority”; (3) the DHS committed three
procedural violations in promulgating the 2016 Rule; and (4)
the 2016 Rule “was implemented arbitrarily and capriciously.”
Compl. ¶¶ 54–84.
The DHS moved to dismiss the complaint pursuant to
Federal Rule of Civil Procedure (FRCP) 12(b)(1) for lack of
jurisdiction because Washtech did not have standing and
pursuant to FRCP 12(b)(6) for failure to state a claim for relief.
Washtech timely filed a response in opposition to the motion
to dismiss.
The district court granted the DHS’s motion to dismiss.
Wash. All. of Tech. Workers v. DHS (Washtech III), 249 F.
6
Supp. 3d 524 (D.D.C. 2017). It dismissed Count I—the
challenge to the 1992 Rule’s statutory authority—on two
alternative grounds. First, the district court held that Washtech
“conceded” its lack of standing because it “fail[ed] to address
the Government’s argument that it lacks standing” in its
opposition to the motion to dismiss. Id. at 536. Second, the
district court held that Washtech in fact did not have standing.
Id. at 536–37. The district court dismissed Count II—the
challenge to the 2016 Rule’s statutory authority—because
Washtech “conceded” that it failed to state a claim for relief by
“fail[ing] to address the Government’s arguments” that
Washtech insufficiently pleaded the claim in its opposition to
the motion to dismiss. Id. at 555. The district court dismissed
Count III on two alternative grounds. First, the district court
held that Washtech conceded that it failed to state a claim for
relief by not addressing the Government’s arguments in its
opposition to the motion to dismiss. Id. at 554. Second, the
district court held that Washtech did not sufficiently plead a
cause of action in Count III. Id. at 555. The district court
dismissed Count IV for failure to state a claim for relief. Id. at
555–56. This appeal followed.
II. ANALYSIS
The “allegations of the complaint are generally taken as
true for purposes of a motion to dismiss.” Hughes v. Rowe, 449
U.S. 5, 10 (1980) (per curiam). We review the district court’s
dismissal of a complaint for lack of standing or for failure to
state a claim de novo. Food & Water Watch, Inc. v. Vilsack,
808 F.3d 905, 913 (D.C. Cir. 2015) (standing); Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (failure
to state a claim). We review the district court’s dismissal of a
complaint for failure to respond to a motion to dismiss for
abuse of discretion. Fox v. Am. Airlines, Inc., 389 F.3d 1291,
1294 (D.C. Cir. 2004).
7
We first address Washtech’s standing. We conclude that
Washtech had standing to bring Counts II, III and IV—all
challenges to the 2016 Rule—under the doctrine of competitor
standing. We do not decide whether Washtech had standing to
bring Count I—the challenge to the 1992 Rule—because we
affirm dismissal of Count I on the alternative jurisdictional
ground of untimeliness. We then address the district court’s
dismissal of Counts II, III and IV. We reverse dismissal of
Count II because we believe the district court abused its
discretion in dismissing a plausible claim for relief based on
Washtech’s inadequate opposition to the DHS’s motion to
dismiss. On remand, the district court must consider whether
the reopening doctrine applies to the issue raised in Count II.
We affirm the district court’s dismissal of Counts III and IV
pursuant to FRCP 12(b)(6) because neither states a plausible
claim for relief.
A. FRCP 12(b)(1) challenges
The DHS challenges Washtech’s standing to bring all four
counts. Washtech “must demonstrate standing for each claim
[it] seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 352 (2006). We address first Washtech’s standing to bring
Counts II, III and IV—its challenges to the 2016 OPT Rule.
Washtech “must allege personal injury fairly traceable to the
defendant’s allegedly unlawful conduct and likely to be
redressed by the requested relief.” Id. at 342 (internal quotation
omitted). We believe Washtech has standing under the
competitor standing doctrine. 2 We address the three standing
requirements in turn.
2
Washtech asserted multiple alternative standing theories in
its brief. Because we dismiss Count I on alternative jurisdictional
grounds and find that Counts II, III and IV are supported by the
doctrine of competitor standing, we need not address Washtech’s
8
First, Washtech has suffered an injury in fact under the
competitor standing doctrine. “The doctrine of competitor
standing addresses the first requirement [of standing] by
recognizing that economic actors suffer an injury in fact when
agencies . . . allow increased competition against them.”
Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010) (internal
quotation and alterations omitted). Although “our cases
addressing competitor standing have articulated various
formulations of the standard for determining whether a plaintiff
. . . has been injured,” the “basic requirement common to all
our cases is that the complainant show an actual or imminent
increase in competition, which increase we recognize will
almost certainly cause an injury in fact.” Id. at 73.
As an initial matter, Washtech’s complaint includes
allegations that its members compete with F-1 student visa
holders who are working in the OPT program pursuant to the
DHS’s regulations. The complaint alleges that three of
Washtech’s members have applied to companies for STEM
jobs and that F-1 student visa holders who work at the same
companies have applied for OPT extensions. See, e.g., Compl.
¶¶ 109–10 (“Since 2010, [a Washtech member] applied to
Microsoft for computer programming jobs three times. At least
100 applications for OPT extensions have been made . . . for
workers at Microsoft.”); id. ¶¶ 151–53 (alleging that member
“applied for a programming job at” Computer Sciences
Corporation (CSC); that “[a]t least 5 contract computer labor
companies that claim to supply workers to CSC have placed
advertisements seeking workers on OPT”; and that “[a]t least 6
applications for OPT extensions have been made . . . for
workers at CSC”). Washtech has thus alleged that its members
are “participating in the [STEM] labor market” in competition
other theories. Safari Club Int’l v. Jewell, 842 F.3d 1280, 1287 (D.C.
Cir. 2016).
9
with OPT workers. Mendoza v. Perez, 754 F.3d 1002, 1013
(D.C. Cir. 2014).
The DHS argues that Washtech’s members are not direct
and current competitors of OPT workers because Washtech
members have not “bothered to even apply” for STEM jobs
since the 2016 Rule took effect. Appellees’ Br. 42. True
enough, the complaint’s allegations do not state that
Washtech’s members have applied after March 11, 2016, the
date the DHS promulgated the 2016 Rule. But Mendoza
forecloses the DHS’s argument. In Mendoza, domestic herders
challenged agency regulations that allegedly increased the
number of foreign herders in the labor market. We held the
plaintiffs suffered an injury in fact. 754 F.3d at 1011. Although
the agency argued the plaintiffs were not competitors of foreign
herders because the plaintiffs had not held a herding job for
several years, we explained that domestic herders who
“affirmed their desire to work” were “not removed from the
herder labor market simply because they do not currently work
as herders and have not filled out formal job applications.” Id.
at 1013–14. Unlike in Mendoza, Washtech’s complaint alleges
that at least three of its members are currently employed on a
full- or part-time basis in STEM positions, see Compl. ¶¶ 106–
07, 137, 184–85, and that their job searches are “constant[],”
id. ¶ 107, and “continuous,” id. ¶ 184. Washtech’s members,
then, are not removed from the STEM labor market simply
because they have not filled out formal job applications since
the 2016 Rule took effect. To the contrary, they have affirmed
their desire to work.
Moreover, Washtech alleges that the 2016 Rule increased
the labor supply in the STEM job market. See Compl. ¶ 108
(alleging that “[c]omputer programming is one of the degrees
DHS targeted for increasing the labor supply under the 2016
Rule”). Although the DHS argues that Washtech’s claim that
10
the 2016 Rule has increased competition in the job market
compared to pre-2016 levels is “imagin[ary],” Appellees’ Br.
42, Washtech may rely on “mere allegations” rather than
“specific facts” to establish standing at the motion to dismiss
stage, Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
Additionally, Washtech’s allegations of increased competition
in the STEM labor market are supported by “facts found
outside of the complaint,” which “we are permitted” to
“consider . . . on a Rule 12(b)(1) motion to dismiss for lack of
jurisdiction.” Mendoza, 754 F.3d at 1016 n.9; see White House
Press Release, IMPACT REPORT: 100 Examples of President
Obama’s Leadership in Science, Technology, and Innovation
(June 21, 2016) (“Approximately 34,000 individuals are
participating in the STEM Optional Practical Training program
at present, and with the[] improvements [of the 2016 Rule] the
total may expand to nearly 50,000 in the first year and grow to
approximately 92,000 by the tenth year of implementation.”),
https://obamawhitehouse.archives.gov/the-press-
office/2016/06/21/impact-report-100-examples-president-
obamas-leadership-science.
Therefore, Washtech has sufficiently pleaded that the
DHS’s regulations “allow increased competition against”
Washtech’s members, Sherley, 610 F.3d at 72, which is a
concrete injury-in-fact, see Mendoza, 754 F.3d at 1011 (“[A]n
individual in the labor market for open-range herding jobs
would have standing to challenge [agency] rules that lead to an
increased supply of labor—and thus competition—in that
market.”); cf. Int’l Union of Bricklayers & Allied Craftsmen v.
Meese, 761 F.2d 798, 802 (D.C. Cir. 1985) (plaintiff union’s
members challenging procedural validity of immigration rules
that “allow[ed] aliens into the country to perform work which
would otherwise likely go to [plaintiff’s] members” suffered
injury in fact because “those alien workers represent
11
competition which [plaintiff’s members] would not face if the
Government followed the procedures required by law”).
Second, Washtech’s injury is caused by the 2016 Rule.
The increase in competition is directly traceable to the DHS
because the DHS’s regulations authorize work for the OPT
participants with whom Washtech members compete for jobs.
See Honeywell Int’l Inc. v. EPA, 374 F.3d 1363, 1369 (D.C.
Cir. 2004) (per curiam) (agency regulation that “legalizes the
entry of a product into a market in which [plaintiff] competes”
causes plaintiff injury), withdrawn in part on other grounds,
393 F.3d 1315 (D.C. Cir. 2005) (per curiam). The DHS argues
that Washtech’s injury is not caused by the DHS because
employers in the STEM labor market independently decide
whether Washtech members are hired. We have heretofore
rejected this line of reasoning as “inconsistent with the
competitor standing doctrine.” Bristol-Myers Squibb Co. v.
Shalala, 91 F.3d 1493, 1499 (D.C. Cir. 1996). In Bristol-
Myers, the manufacturer of a pioneer drug challenged an
agency regulation authorizing the manufacture of generic
versions of the same drug. Id. at 1495–97. After concluding
that the increase in competing products in the market was a
sufficient injury in fact, we held the challenged regulation
caused the injury. Id. at 1499. Because “the injury claimed is
exposure to competition” rather than “lost sales, per se,” it was
“no answer to say that the FDA is merely permitting a
competitive product to enter the market and leaving the
purchasing decision to the consumer.” Id. The same rationale
obtains here. The injury claimed is exposure to increased
competition in the STEM labor market—not lost jobs, per se.
Accordingly, the DHS’s argument that its regulation leaves the
hiring decision to the employer is unavailing. See also
Honeywell Int’l, 374 F.3d at 1369 (rejecting argument that
plaintiff’s injury was not caused by regulation allowing
competing products into market because plaintiff could only
12
“speculat[e] about the purchasing decisions of third parties not
before the court”). Washtech has therefore “demonstrate[d] a
causal relationship between the final agency action and the
alleged injur[y].” Ctr. for Law & Educ. v. Dep’t of Educ., 396
F.3d 1152, 1160 (D.C. Cir. 2005).
Third, and finally, Washtech’s injury is redressable by a
favorable decision. Washtech has alleged that it is injured
because of increased competition from workers who are
eligible to work only because of the 2016 Rule. A court order
invalidating the 2016 Rule would eliminate workers from the
STEM job market and therefore decrease competition for the
STEM jobs pursued by Washtech’s members. The specific
injury suffered, then, would be remedied by a favorable court
order. See Sherley, 610 F.3d at 72 (stem-cell research plaintiffs
challenging regulations that increased competition for research
grants had standing; redressability “clear”); Honeywell Int’l,
374 F.3d at 1369 (“As a favorable opinion of the court could
remove the competing [products] from the market,
redressability is satisfied . . . .” (emphasis added)).
Accordingly, Washtech has standing to bring its three claims
challenging the 2016 Rule.
Washtech’s standing to bring Count I, a claim that the
1992 Rule exceeds the DHS’s statutory authority, is less
certain. Washtech argues that the 1992 Rule caused the same
injury as the 2016 Rule—an increase in competition for STEM
jobs as a result of the Rule’s permitting OPT workers in the
STEM field—but Washtech’s complaint provides less
substance regarding the 1992 Rule. The complaint alleges that
Washtech members compete with workers operating under the
extensions authorized by the 2016 Rule but does not
specifically allege that they compete with workers operating
under the initial twelve-month OPT period authorized by the
1992 Rule. The DHS urges us to agree with the district court
13
that Washtech’s failure is fatal to its standing to challenge the
1992 Rule. We are skeptical of the DHS’s argument. No OPT
participants could apply for extensions to work without first
working for twelve months as authorized by the 1992 Rule. The
allegations regarding the 2016 Rule naturally and inevitably
encompass allegations against the 1992 Rule, even if not
explicitly spelled out that way in the complaint. Nevertheless,
we need not decide this issue because there is another
jurisdictional bar. 3
We affirm dismissal of Count I on the alternative ground
that the claim is untimely. Under 28 U.S.C. § 2401(a), “every
civil action commenced against the United States shall be
barred unless the complaint is filed within six years after the
right of action first accrues.” 4 The “right of action first accrues
on the date of the final agency action.” Harris v. FAA, 353 F.3d
3
The district court also held that Washtech had conceded Count
I and therefore dismissed it pursuant to Local Rule 7(b). We take no
position on the district court’s 7(b) holding because we dismiss
Count I on the basis of a threshold jurisdictional ground. We further
address application of Local Rule 7(b), infra at Part II.B.1.
4
Section 2401(a) “is a jurisdictional condition attached to the
government’s waiver of sovereign immunity.” Spannaus v. DOJ, 824
F.2d 52, 55 (D.C. Cir. 1987). Accordingly, we may decide the claim
on this alternative jurisdictional ground without reaching other
jurisdictional issues such as standing. P&V Enters. v. U.S. Army
Corp. of Eng’rs, 516 F.3d 1021, 1026–27 (D.C. Cir. 2008) (holding
claim time-barred under section 2401(a) and affirming dismissal of
claim “for lack of subject-matter jurisdiction” without “reach[ing]
the [defendant’s] alternative objection that [plaintiff] lacks
standing”); see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584
(1999) (“While . . . subject-matter jurisdiction necessarily precedes
a ruling on the merits, the same principle does not dictate a
sequencing of jurisdictional issues.”).
14
1006, 1010 (D.C. Cir. 2004). The 1992 Rule was
unquestionably final agency action. Therefore, the six-year
window to directly challenge the statutory authority of the 1992
Rule closed in 1998. As discussed infra, however, the dismissal
of Count I does not foreclose Washtech’s challenge to the
statutory authority of the OPT program as a whole because the
2016 Rule may have reopened the issue anew.
B. FRCP 12(b)(6) and Local Rule 7(b) challenges
We now turn to Washtech’s claims attacking the 2016
Rule. The DHS asserts that all three of the remaining counts,
II, III and IV, fail to state a claim for relief. A complaint “must
contain . . . a short and plain statement of the claim showing
that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A
defendant may file a motion to dismiss for “failure to state a
claim upon which relief can be granted.” FED. R. CIV. P.
12(b)(6). “To survive a [12(b)(6)] motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
omitted). A claim “has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. A complaint must provide “more than
labels and conclusions”; although it “does not need detailed
factual allegations,” the factual allegations “must be enough to
raise a right to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The DHS also asserts that we should affirm the district
court’s decision to treat two of the remaining counts—II and
III—as “conceded” pursuant to the United States District Court
for the District of Columbia’s Local Rule 7(b), which provides:
15
Within 14 days of the date of service [of a
party’s motion] or at such other time as the
Court may direct, an opposing party shall serve
and file a memorandum of points and
authorities in opposition to the motion. If such a
memorandum is not filed within the prescribed
time, the Court may treat the motion as
conceded.
D.D.C. LOCAL RULE 7(b).
1. Count II
Count II alleges that the “2016 Rule is in excess of
DHS[’s] authority” because the DHS’s “policy of allowing
aliens to remain in the United States after completion of the
course of study to work or be unemployed is in excess of DHS
authority to admit academic students under 8 U.S.C.
§ 1101(a)(15)(F)(i) and conflicts with” other cited INA
provisions. Compl. ¶¶ 62–63. Elsewhere in its complaint,
Washtech’s allegations flesh out the core of its claim: the
INA’s F-1 visa provision authorizes the admission of
“students”; nonimmigrants who work under the OPT program
are not “students” under the statute; and the regulation
authorizing nonimmigrants to work under the OPT program is
therefore in excess of statutory authority. See id. ¶ 35 (“[N]o
statute currently permits F-1 student visa holders to work.”);
id. ¶ 39 (“DHS has [now] created several extra-statutory
regulatory F-1 student visa work programs” by authorizing F-
1 visa holders to work).
The DHS argues this is not enough to state a plausible
claim for relief. It asserts Washtech needs to “explain[]” how
the regulation exceeds the DHS’s statutory authority.
Appellees’ Br. 51. But we are hard-pressed to imagine what
more Washtech needs to allege to satisfy the “lesser showing
16
required at the pleading stage,” Am. Soc. for Prevention of
Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 18 (D.C.
Cir. 2011), particularly in light of the kind of claim it brings. A
claim that a regulation exceeds statutory authority is not a claim
that requires factual allegations about the defendant’s actions
in order to demonstrate lack of authority. Compare Mountain
States Legal Found. v. Bush, 306 F.3d 1132, 1136–37 (D.C.
Cir. 2002) (dismissing complaint alleging simply “President
acted unconstitutionally and ultra vires under the Property
Clause” because plaintiff “fail[ed] to allege any facts sufficient
to support its ultra vires claim” and “present[ed] no more than
legal conclusions”). Here, the complaint plainly identifies the
perceived disconnect between what the statute permits
(admitting nonimmigrant aliens as “students”) and what the
regulations do (allowing the same nonimmigrant aliens to
remain in the country to work after they are no longer students).
The complaint also cites the relevant statutory and regulatory
provisions. Washtech’s claim survives a 12(b)(6) motion to
dismiss.
Despite the fact that Washtech stated a plausible claim for
relief, the district court concluded that Washtech’s response in
opposition to the motion to dismiss was inadequate. The district
court thus “deem[ed]” it “appropriate” to treat the issue as
“conceded” and dismissed Count II pursuant to Local Rule
7(b). Washtech III, 249 F. Supp. 3d at 555. We review “the
district court’s application of [Local Rule] 7(b) for abuse of
discretion.” Fox, 389 F.3d at 1294. We think the district court’s
decision to dismiss Washtech’s plausible claim for relief
because its timely response to the motion to dismiss
purportedly failed to state Washtech’s opposition with
sufficient substance—notwithstanding Washtech’s response in
fact disagreed with the DHS’s contention that it failed to state
a plausible claim for relief and also included a citation to the
allegedly deficient complaint—was an abuse of discretion.
17
The circumstances here are distinguishable from our
precedent affirming the application of Local Rule 7(b). We
have endorsed dismissing a complaint pursuant to Local Rule
7(b) if the plaintiff failed to timely file a response in opposition
to the defendant’s FRCP 12(b)(6) motion to dismiss. Fox, 389
F.3d at 1294 (dismissing amended complaint after plaintiff
failed to respond to motion to dismiss because of counsel’s
alleged lack of notice of motion to dismiss due to case filing
system malfunction); see also Cohen v. Bd. of Trs. of the Univ.
of D.C., 819 F.3d 476, 483–84 (D.C. Cir. 2016) (dismissing
complaint after plaintiff failed to timely file response in
opposition to FRCP 12(b)(6) motion to dismiss but holding that
dismissal with prejudice was abuse of discretion because
plaintiff attempted to remedy error by filing late response and
filing amended complaint). That is not the case here: Washtech
did timely file a response in opposition to the DHS’s motion to
dismiss. Therefore, Fox does not control.
In the context of non-dispositive motions, we have
affirmed district court decisions that treated as conceded an
issue left entirely unaddressed by the plaintiff in a timely filed
response. See Texas v. United States, 798 F.3d 1108, 1110,
1113–16 (D.C. Cir. 2015) (affirming grant of defendant’s
motion seeking attorneys’ fees when plaintiff’s response did
not dispute assertion that defendant was “prevailing party”
within meaning of statute); Wannall v. Honeywell, Inc., 775
F.3d 425, 428–29 (D.C. Cir. 2014) (affirming grant of
defendant’s motion to strike untimely declaration because
plaintiff “did not raise the argument” that FRCP 26(e)
permitted admission of untimely declaration “in his opposition
to the defendant’s motion to strike”). That, too, is not the case
here. Washtech included a section in its response specifically
addressing the sufficiency of its claims for relief. See Pl’s Resp.
to Mot. to Dismiss at 43, Washtech III, 249 F. Supp. 3d 524
(No. 1:16-cv-01170), ECF No. 20. Washtech asserted that
18
“[e]ach count contains both a legal and factual basis” for relief.
Id. And Washtech cited its complaint—the pleading on which
an FRCP 12(b)(6) motion to dismiss focuses—in its response.
See id.
Granted, Washtech would have been wise to more fully
develop its argument that it met FRCP 12(b)(6)’s pleading
standard. Doing so would have helped the district court more
efficiently evaluate the sufficiency of Washtech’s claim. But it
is plain that Washtech did not “concede[],” D.D.C. LOCAL
RULE 7(b), that it failed to state a claim: Washtech did not
“yield or grant” its argument, Concede, AMERICAN HERITAGE
COLLEGE DICTIONARY 296 (4th ed. 2007), nor did it
“acknowledge” or “accept” the DHS’s position, Concede,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 469 (3d
ed. 1993). Unlike the plaintiffs in Texas and Wannall,
Washtech was not silent when confronted with the argument
that its allegations fell short.
We conclude that a party may rest on its complaint in the
face of a motion to dismiss if the complaint itself adequately
states a plausible claim for relief. The district court decision
turned what should be an attack on the legal sufficiency of the
complaint into an attack on the legal sufficiency of the response
in opposition to the motion to dismiss. That transformation
undermines “the clear preference of the Federal Rules to
resolve disputes on their merits.” Cohen, 819 F.3d at 482.
Although Local Rule 7(b) “is a docket-management tool that
facilitates efficient and effective resolution of motions by
requiring the prompt joining of issues,” Fox, 389 F.3d at 1294,
it is not a tool to subvert the FRCP 12(b)(6) inquiry simply
because the court finds the plaintiff’s opposition to the motion
to dismiss, although pressed, underwhelming. We recognize
we have only once before found an abuse of discretion in the
district court’s application of Local Rule 7(b). See Cohen, 819
19
F.3d 476. 5 But Washtech’s complaint in fact stated a plausible
claim for relief that the regulation exceeded the DHS’s
statutory authority. And Washtech timely filed an opposition to
the FRCP 12(b)(6) motion to dismiss that indicated it adhered
to its position that its complaint was well-pleaded. In this
circumstance, we believe that, in kicking Washtech out of court
under Local Rule 7(b), the district court abused its discretion.
That said, whether Count II may proceed remains in
question. Count II as framed alleges that the entire OPT
program is ultra vires. See Compl. ¶¶ 62–63. The challenge to
the DHS’s authority to provide for OPT workers at all
implicates the authority first granted by the 1992 Rule. As
discussed supra, the six-year statute of limitations on such a
challenge closed in 1998. Washtech asserts, however, that it
may still challenge the statutory authority for the entire OPT
program under the reopening doctrine. The “doctrine arises
where an agency conducts a rulemaking or adopts a policy on
an issue at one time, and then in a later rulemaking restates the
5
Cohen also raised “concerns” about allowing the district
court to rely on Local Rule 7(b) at all in the context of a 12(b)(6)
motion to dismiss. 819 F.3d at 481–83; cf. Winston & Strawn, LLP
v. McLean, 843 F.3d 503, 508 (D.C. Cir. 2016) (holding that “a
motion for summary judgment” pursuant to FRCP 56 can never “be
deemed ‘conceded’” pursuant to Local Rule 7(b) “for want of
opposition”). Assuming without deciding we share Cohen’s
concerns, we are bound at the panel stage by our precedent
permitting district courts to apply Local Rule 7(b) in the context of a
12(b)(6) motion to dismiss. Fox, 389 F.3d 1291; see Cohen, 819 F.3d
at 483 (stating that Fox “compels us to affirm the district court’s
decision insofar as it granted the motion to dismiss the complaint”
after plaintiff failed to timely file response). We also need not resolve
the “tension” between the local and federal procedural rules, Cohen,
819 F.3d at 481, because we find the district court abused its
discretion and reverse on that ground.
20
policy or otherwise addresses the issue again without altering
the original decision.” CTIA-Wireless Ass’n v. FCC, 466 F.3d
105, 110 (D.C. Cir. 2006) (internal quotation and alterations
omitted). If the reopening doctrine applies, it “allows an
otherwise stale challenge to proceed because the agency
opened the issue up anew, and then reexamined and reaffirmed
its prior decision.” P&V Enters. v. Army Corps of Eng’rs, 516
F.3d 1021, 1023 (D.C. Cir. 2008) (internal quotation and
alteration omitted). Accordingly, if the DHS reopened the issue
of whether the OPT program as a whole is statutorily
authorized in its notice of proposed rulemaking vis-à-vis the
2016 Rule, “its renewed adherence is substantively
reviewable,” CTIA-Wireless Ass’n, 466 F.3d at 110 (internal
quotation omitted), and the challenge to the entire program may
proceed. See Ohio v. EPA, 838 F.2d 1325, 1328 (D.C. Cir.
1988) (applying reopening doctrine and allowing challenge to
“unchanged [and] republished portion of” new regulation that
was “originally enacted” in old regulation).
The district court did not decide whether Washtech’s
challenge to the OPT program’s statutory authority was
reviewable under the reopening doctrine. See Washtech III, 249
F. Supp. 3d at 537 n.3. We therefore decline to address the
question in the first instance and leave it for the district court
to address on remand. See Singleton v. Wulff, 428 U.S. 106, 120
(1976) (stating “general rule . . . that a federal appellate court
does not consider an issue not passed upon below”); Liberty
Prop. Trust v. Republic Props. Corp., 577 F.3d 335, 341 (D.C.
Cir. 2009) (“Although we . . . have the discretion to consider
questions of law that were not passed upon by the District
Court, this court’s normal rule is to avoid such consideration.”
(internal quotation and alterations omitted)).
21
2. Count III
Washtech’s third claim alleges three procedural
deficiencies in the DHS’s promulgation of the 2016 Rule: (1)
failure to comply with the Congressional Review Act; (2)
failure to provide “actual” notice and comment; and (3) failure
to comply with incorporation-by-reference requirements. The
complaint does not state a plausible claim for relief based on
any of the three purported procedural violations. We therefore
affirm the district court’s dismissal pursuant to FRCP 12(b)(6).
We take no position on whether the district court abused its
discretion in also dismissing the claim pursuant to Local Rule
7(b).
First, Washtech alleged that the 2016 Rule was published
in the Federal Register fewer than 60 days before it took effect,
contrary to the Congressional Review Act’s mandatory 60-day
delay. Compl. ¶¶ 64–66 (citing 5 U.S.C. § 801(a)(3)(A)). Even
taking the factual allegation as true, it does not state a claim for
relief. The Congressional Review Act provides that “[n]o
determination, finding, action, or omission under this chapter
shall be subject to judicial review.” 5 U.S.C. § 805. This
judicial-review prohibition “denies courts the power to void
rules on the basis of agency noncompliance with the Act.”
Montanans for Multiple Use v. Barbouletos, 568 F.3d 225, 229
(D.C. Cir. 2009). Whether or not the 2016 Rule took effect less
than 60 days after its publication, then, there is no “relief” we
can “grant.” FED. R. CIV. P. 12(b)(6); see Davis v. District of
Columbia, 158 F.3d 1342, 1349 (D.C. Cir. 1998) (motion to
dismiss may be granted if plaintiff “would not have a claim
upon which relief could be granted even with [sufficiently
pled] facts”).
Second, Washtech alleged that the DHS “failed to subject
the question of whether the OPT program should be expanded
22
beyond a year to actual notice and comment.” Compl. ¶ 67. In
addition to the fact that the DHS did in fact subject the question
to notice and comment, see 80 Fed. Reg. at 63385–86
(requesting and responding to “public comment” on proposed
24-month OPT extension), the complaint makes no further
allegations supporting its bare legal conclusion. Therefore, the
complaint offers nothing more than “[t]hreadbare recitals of the
elements of” a notice-and-comment “cause of action, supported
by mere conclusory statements.” Iqbal, 556 U.S. at 678. That
is not enough to survive a 12(b)(6) motion to dismiss. See id.
Third, Washtech alleged that the provision of the OPT
2016 Rule that the Secretary is to “maintain” a “complete list
of qualifying [STEM] degree program categories” to be
published on the “Student and Exchange Visitor Program Web
site,” 8 C.F.R. § 214.2(f)(10)(ii)(C)(2)(ii), improperly
incorporates an external source without following the five
incorporation-by-reference requirements set forth in 1 C.F.R. §
51.1–51.9. Compl. ¶¶ 69–80. If the incorporation-by-reference
requirements are not followed, the external material is not
“published.” 5 U.S.C. § 552(a)(1). But the failure to publish
material in a rulemaking is cognizable only if (1) the material
was “required to be published”; (2) the aggrieved party did not
have “actual and timely notice of the terms thereof”; and (3)
the aggrieved party is “required to resort to, or [is] adversely
affected by,” the unpublished material. Id.; cf. PPG Indus., Inc.
v. Costle, 659 F.2d 1239, 1250 (D.C. Cir. 1981). Washtech’s
complaint contains no allegations regarding these three
requirements. Without them, Washtech has not pleaded a claim
for relief on the basis of the alleged incorporation-by-reference
violations. See Harris v. D.C. Water & Sewer Auth., 791 F.3d
65, 69 (D.C. Cir. 2015) (plaintiff’s complaint must allege
sufficient facts of each element of claim to survive motion to
dismiss).
23
3. Count IV
Washtech’s fourth and final claim alleges that the 2016
Rule is arbitrary and capricious because it “requires employers
to provide foreign-guest workers OPT mentoring without
requiring that such program be provided to American workers”
and because it “singles out STEM occupations for an increase
in foreign labor through longer work periods with no
justification.” Compl. ¶¶ 81–84.
Neither allegation “permit[s] the court to infer more than
the mere possibility of misconduct.” Iqbal, 556 U.S. at 679.
The complaint’s allegation that the Rule deals with two
different things—OPT workers and American workers—in
two different ways—the former group receives mentoring
programs but the latter does not—does not state a plausible
claim that the regulation is arbitrary and capricious.
Washtech’s desire for its own members to participate in
mentoring programs does not sufficiently allege illegality on
the DHS’s part. Cf. Twombly, 550 U.S. at 555–57 (pleading
defendant’s “parallel conduct” in antitrust case insufficient
even though parallel conduct could indicate intent to conspire
because, without more, alleging “parallel conduct” placed
defendant in “neutral territory”). Further, the complaint’s
allegation that Washtech arbitrarily increased foreign labor in
the STEM market with no justification for not doing so in other
fields is unsupported by any factual allegations. Washtech has
set forth no more than an insufficient “defendant-unlawfully-
harmed-me accusation.” Iqbal, 556 U.S. at 678; see also L. Xia
v. Tillerson, 865 F.3d 643, 660 (D.C. Cir. 2017) (“conclusory
allegation” of unlawfulness insufficient to survive 12(b)(6)
motion to dismiss). Accordingly, we affirm the district court’s
dismissal of Count IV under FRCP 12(b)(6).
24
For the foregoing reasons, we affirm the district court’s
dismissal of Counts I, III and IV. We reverse its dismissal of
Count II and remand Count II for further proceedings
consistent with this opinion.
So ordered.