IRLI Files Response Brief Opposing DHS Request to Delay Unlawful Rule Invalidation


January 13, 2016

On Monday, January 11, 2016, IRLI filed a response brief (attached here) opposing the U.S. Department of Homeland Security’s recent request that the D.C. U.S. District Court extend the court-imposed February 12, 2016 deadline by three months to allow it more time to implement a replacement Optional Practical Training (OPT) rule that complies with the Administrative Procedure Act (APA). In August 2015, the federal district court ruled in IRLI’s client’s favor when it struck down an expansion of the OPT program, only to delay the vacatur until February 12, finding that DHS violated the APA when it bypassed the public notice and comment process. IRLI represents the Washington Alliance of Technology Workers, Local 37083 of the Communication Workers of America, AFL-CIO (“Washtech”), an American tech workers union challenging DHS regulations that permit non-student foreign labor to compete with American workers.

In its brief, IRLI first argued that the court lacks jurisdiction to grant DHS’s requested extension of time because a final judgment has been entered in the case and IRLI has appealed the negative portions of the judge’s decision to the U.S. Court of Appeals for the D.C. Circuit. Pursuant to federal rules of procedure, although DHS may seek an indicative ruling from the lower court as to whether the motion raises a substantial issue, DHS must then notify and convince the D.C. Circuit to remand the matter for consideration—all before February 12, 2016.

IRLI then argued that DHS had not presented a substantial issue or identified extraordinary circumstances that might justify an indicative ruling by the lower court in support of remand. IRLI pointed out to the court that any need for time to review comments—DHS’s excuse—was entirely due to strategic choices made by DHS.

Specifically, DHS issued the interim rule in 2008. DHS thus had 7 years, 10 months, and 4 days to issue a final rule that complied with the APA but did not do so. Even further, DHS certainly was on notice as early as 2008 that its rule was defective when an American workers association (also represented by IRLI) sued; likewise claiming the interim rule violated the APA. The case was dismissed on standing grounds in the Third Circuit. DHS gambled that no American worker would ever obtain standing to challenge its actions so it did nothing—a bad strategic choice by DHS that is haunting it now. In 2014, Washtech sued DHS over the same issue in the U.S. District Court for D.C. and the court ruled in November 2014 that Washtech had standing to challenge the defective rule.

IRLI also argued any need for time to create guidance and training for the new rule—another DHS excuse—is not an extraordinary circumstance because it is entirely due to more bad strategic choices made by DHS. Instead of DHS subjecting the 2008 OPT rule to public comment or to provide an orderly transition from the vacated 2008 OPT rule, it opted to use the delay to create and publish a new and different final rule, further expanding the OPT program. The foreseeable result of these comprehensive rule changes, made in the face of a court-imposed deadline, was increased complexity in the OPT program—a mistake of DHS’s own creation.

Finally, IRLI argued that DHS cannot show that the requested extraordinary relief would ensure timely publication of a new final rule considering its past conduct, allowing facts that did not exist at the time of judgment to create extraordinary circumstances would undermine the finality of judgments, and DHS failed to give proper notice and comment for the 2015 proposed rule so any extension of time would be pointless.

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