Wash. Alliance of Tech. Workers v. U.S. Dep't of Homeland SEC.

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.