Opposition Brief — Programmers Guild v. Napolitano

No. 09-590

Jn the Supreme Court of the Anited States

THE PROGRAMMERS GUILD, ET AL., PETITIONERS

Vv.

JANET NAPOLITANO, SECRETARY OF HOMELAND

SECURITY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

FLENA KAGAN

Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney General

DAVID J. KLINE

VICTOR M. LAWRENCE

SAMUEL P. Go

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Nonimmigrant aliens admissible to the United States

include an alien who “seeks to enter the United States

temporarily and solely for the purpose of pursu-

ing * * * a([full] course of study” at an approved aca-

demic institution or training program. 8 U.S.C.

1101(a)(15)(F )(Gi). Holders of such “F-1 status” have his-

torically been permitted to engage in employment dir-

ectly related to the course of study for a limited period

of time after completion of the course of study, a prac-

tice formalized as Optional Practical Training (OPT).

See 8 C.F_.R. 214.2(£)(9)-(10). Some F-1 status students

seeking continued employment after their F-1 status

ends apply for H-1B status, which permits them to

remain temporarily in the United States to perform

services in a specialty occupation. See 8 U.S.C.

1101(a)(15)(H)(i)(b); 8 C.F.R. 214.2(h)(1)(ii)(B).

A 2008 Interim Final Rule of the Department of

Homeland Security (1) lengthened the permissible peri-

od of OPT for students in certain fields, and (2) per-

mitted an F-1 status student in any field with a pending

H-1B petition to remain in the United States pending

the start of H-1B status (or denial of the petition). See

73 Fed. Reg. 18,944 (2008) (8 C.F.R. Pts. 214, 274a).

The question presented is whether domestic job ap

plicants are within the zone of interests protected by F-1

status for nonimmigrant alien student.

(I)

TABLE OF CONTENTS

Page

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COMO. oc cenccdcccvest hunny tides assssdeseleee 21

TABLE OF AUTHORITIES

Cases:

Ahmed v. United States, 480 F.2d 531 (2d Cir. 19738) .... 14

Air Courier Conference of Am. v. American Postal

Workers Union, 498 U.S. 517 (1991) .... 9, 11, 12, 138, 16

Association of Data Processing Serv. Orgs. v. Camp,

sie me: Tt. Brrrerrierrrrrirrr rr rr te 9

Federation for Am. Immigration Reform, Inc. v.

Reno, 93 F.3d 897 (D.C. Cir. 1996), cert. denied,

GRE Ui AR Cee oes use viscdevessuseses 10, 15, 16

International Longshoremen’s & Warehousemen’s

Union v. Meese, 891 ¥'.2d 1374 (9th Cir. 1989) .... 16, 17

International Union of Bricklayers & Allied

Craftsmen v. Meese, 761 F.2d 798 (D.C. Cir.

SOUE cb ctsccchvedanccessabuesecdeecesennrens 10,15

Lorillard v. Pons, 434 U.S. 575 (1978)... eee eee 13

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . 18, 20

Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990) .. 12

Patel v. INS, 811 F.2d 377 (7th Cir. 1986) ............-. 14

Constitution, statutes and regulations:

tf as ee Orr ey 7,11, 18

(IIT)

IV

Statutes and regulations—Continued: Page

[Immigration and Nationality Act, 8 U.S.C. 1101

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PL BEEN bb cess ceeeceseeneeevereanc 8,13

DB Uta REID ov ccecccvcccccecesseses 10

8 U.S.C. 1182(a)(14) (1982) . ; eye

DU REIEEED Sct orcccesceuncetesaceves 10

& U.S.C. 1184(a)Q1) rere .. 813,14

DUE. REE AAUED cc ccccctccccscencccsees 4

8 U.S.C. 1184(p)(5) . .. rrr Terry Ts

Pe PE 6cceb 6b dee eRe RS ENekenads ea keneei 4

Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603, 100 Stat. 33859 .......... Sanaa

Special Immigrant Nonminister Religious Worker

Program Act, Pub. L. No. 110-391, 122 Stat. 4193 .... 13

DP EPRA ED coc voccepuceunenesecesastesseeensen 6, 20

Bik Se. SP PrrerTTrrrirrrerrir rT err 8, 20

6 U.S.C. 202 ..... coats Jcdeeeehaneues 14

fit ' tt rrr rrrrT TT Tr TTT eee TTT ree 14

8 C.F _R.:

Pt. 125:

Section 125.15(b) (1947) ale eee

Regulations—Continued: Page

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section SIS ZI NGHIV) 2... cccccccvvccscvccccvcces 3

BN EEE a consecuecucccctusercncsccens 2

I REED os cusvecdcuuscceucesedsvees 2

Section 214.2(f)(10) (2008) 2.2... 2... ce eee eee 3

Section 214.2(fK1OKUMKANS) ... cece ccc cvcvcccces 3

Section SIA BUNUN) 2. cccccccccccccccvecees 4

GE EO MELEED vid cccccecccsccveccesess 4

Section 214.2(h)(15) IMB)... ee ee eee 4

en Sadadetasesse0004e SUN GSR PERG UC SSE S ESOS h

Miscellaneous:

Se SED no dp ccaceesduectvaunseunesss 5

Immigration and Nationality Act Waivers, Foreign

Students, Consular Functions Abroad, and

Immigration Benefits to Illegitimate Children

Before the Subcomm. on Immigration,

Citizenship, and International Law of the H.

Comm. on the Judiciary, 94th Cong., Ist & 2d

a EE i soko gains bb ae SREO EWA Os wend OnE ES 448 3

National Commission for Manpower Policy, Special

Rep. No. 20, Manpower and Immigration Policies

in the United States (Feb. 1978) ................44.-. 3

S. Rep. No. 1515, 81st Cong., 2d Sess. (1950) ............ 3

United States Citizenship and Immigration Services,

USCIS Reaches FY 2008 H-1B Cap (Apr. 3, 2007),

http://www.uscis.gov/files/pressrelease/

PERE WINES a bo nsec denceeresacvcteuaa 4

Jn the Supreme Court of the Gnited States

No. 09-590

THE PROGRAMMERS GUILD, ET AL., PETITIONERS

v.

JANET NAPOLITANO, SECRETARY OF HOMELAND

SECURITY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-11a)

is not published in the Federal Reporter but is reprinted

in 338 Fed. Appx. 239. The orders of the district court

(Pet. App. 13a-22a, 23a-33a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 17, 2009. A petition for rehearing was denied on

August 17, 2009 (Pet. App. 35a-36a). The petition for a

writ of certiorari was filed on November 13, 2009. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

ys

STATEMENT

1. The Immigration and Nationality Act (INA),

8 U.S.C. 1101 et seg., defines a variety of classes of non-

immigrant aliens who are admissible to the United

States by virtue of their occupational, educational, offi-

cial, or other status, and who may remain in the United

States subject to statutory conditions and, inter alza,

further conditions imposed by the Secretary of Home-

land Security (DHS or Secretary). This case concerns

an Interim Final Rule (Rule) promulgated by the Secre-

tary regarding nonimmigrant aliens in “F-1 status,”

which covers certain alien students seeking to enter the

United States to pursue a full course of study. In addi-

tion to addressing the conditions of F-1 status, the Rule

addresses the transition that some nonimmigrant aliens

may make between F-1 status and “H-1B status,” which

covers certain workers seeking to enter the United

States temporarily to perform services in a specialized

occupation.

a. F-1 nonimmigrant aliens are foreign nationals

who seek to enter the United States to pursue a full

course of study in approved colleges, universities, semi-

naries, conservatories, academic high schools, private

elementary schools, other academic institutions, or lan-

guage training programs in the United States. 8 U.S.C.

1101(a)(15)(F'). With narrowly drawn exceptions, hold-

ers of F-1 status are not permitted to engage in employ-

ment in the United States. See 8 C.F.R. 214.2(f)(9).

With the approval of United States Citizenship and Im-

migration Services (USCIS) in DHS, however, such an

alien may engage for a limited time in employment that

takes the form of practical training “in a position that is

directly related to his or her major area of study.”

8 C.F.R. 214.2(f)(10). One category of practical training,

3

known as Optional Practical Training (OPT), permits an

F-1 status student to engage in such training after com-

pletion of his or her full academic course of study, a

practice known as post-completion OPT. See 8 C.F.R.

214.2(f)(10)(ii)(A)(3).’ Prior to promulgation of the Rule,

F-1 status students had been eligible to seek authoriza-

tion for up to 12 months of OPT. 8 C.F.R. 214.2(f)(10)

(2008).

Once an F-1 status student has completed his or her

full course of study, including any authorized OPT after

completion of studies, the student must transfer to an-

other approved educational institution to continue stud-

ies; change to a different nonimmigrant status; other-

wise legally extend his or her period of authorized stay

in the United States; or leave the United States. See

8 C.F.R. 214.2(f)(5)(iv). F-1 status students are allowed

60 days after the completion of their studies and any

post-completion OPT to prepare for departure from the

United States. /bid.

' Practical training for foreign students has been part of immigration

law since at least 1947, when the Immigration and Nationalization Ser-

vice (INS) permitted practical training “for a six-month period subject

to extension for not over two additional six-month periods.” 8 C.F.R.

125.15(b) (1947). Congress has from time to time considered the issue

of “practical training” and foreign students in the United States work-

force, but has generally left the administrative framework intact as it

__has evolved. See, e.g.,S. Rep. No. 1515, 81st Cong., 2d Sess. 482-483

(1950); Immigration and Nationality Act Waivers, Foreign Students,

Consular Functions Abroad, and Immigration Benefits to Illegitimate

Children Before the Subcomm. on Immigration, Citizenship, and In-

ternational Law of the H. Comm. on the Judiciary, 94th Cong., Ist &

2d Sess. 21-28 (1976); National Comm’n for Manpower Policy, Special

Rep. No. 20, Manpower and Immigration Policies in the United States

81 (Feb. 1978).

4

b. H-1B nonimmigrant aliens are foreign nationals

who seek to enter the United States “temporarily * * *

to perform services * * * in a specialty occupation,”

and satisfy other criteria. 8 U.S.C. 1101(a)(15)(H)(i)(b);

8 C.F.R. 214.2(h)(1)Gi)(B). A “specialty occupation” is

one that requires the theoretical and practical applica-

tion of a body of specialized knowledge and a bachelor’s

or higher degree in the specialty as a minimum quailifi-

cation. 8 U.S.C. 1184(i). H-1B status generally may be

extended to a total of six years from the date that em-

ployment begins. See 8 C.F.R. 214.2(h)(15)(ii)(B)(1).

Congress caps the number of individuals who may

assume H-1B status each year. That quota presently

stands, with certain exceptions, at 65,000 H-1B visas

per fiscal year (7.e., October 1 to September 30). See

8 U.S.C. 1184(g)(1)(A)(vii) and (5). Because a petition

for an H-1B visa may not be filed or approved more than

six months before employment is to commence, see

8 C.F.R. 214.2(h)(9)(i)(B), a large volume of such peti-

tions is typically received starting in early April (six

months before the October 1 start of the following fiscal

year’s quota), causing the quota to be filled well before

the start of the fiscal year. For example, USCIS re-

ceived approximately 150,000 petitions for H-1B visas on

the first day in April 2007 it accepted such petitions.

See USCIS, USCIS Reaches FY 2008 H-1B Cap (Apr. 3,

2007), http://www.uscis.gov/files/pressrelease/

H1IBFY08Cap040307.pdf.

ec. Some graduating F-1 status students seek H-1B

status to remain in the United States as employees in a

technical field requiring advanced study. For an F-1

status student who obtains H-1B status, the compressed

H-1B petition timetable described above causes the typi-

cal alien student to experience a gap between the expira-

4)

tion of F-1 status (after the alien graduates or ends

post-completion OPT) and the commencement of H-1B

status (typically early the following October)—a period

during which the alien cannot lawfully be present in the

United States. This problem is sometimes referred to as

“Cap-Gap.” The employers who employ F-1 status stu-

dents on OPT—particularly those in high-demand fields

of science, technology, engineering, and mathematics

(STE M)—face a related set of problems: an F-1 status

student on OPT may not obtain one of the limited num-

ber of H-1B visas for the coming fiscal year, and thus

may be forced to leave employment; and even if the em-

ployee does obtain an H-1B visa, he may have to leave

his employment and the United States during the Cap-

Gap period.

To address these problems—and the immediate com-

petitive disadvantage they created for domestic high-

technology industries that need to recruit and retain

skilled workers to compete globally—_the Secretary pro-

mulgated an Interim Final Rule on April 8, 2008, as the

2008 Cap-Gap period affecting the greatest number of

F-1 status students was beginning. The Rule (1) ex-

tended the maximum OPT period for an F-1 status stu-

dent with a STEM degree to 29 months (subject, as be-

fore, to USCIS approval), and (2) permitted any F-1

status student with a pending H-1B petition to remain in

the United States until he commences H-1B status or

the petition is denied. Department of Homeland Secu-

rity, 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 Stu-

dents with Pending H-1B Petitions, 73 Fed. Reg. 18,944

(codified at 8 C.F.R. Pts. 214, 274a) (reproduced at Pet.

App. 45a-96a). The Rule does not create a new classifi-

6

cation of foreign workers or a new visa category, nor

does it confer a new benefit on any existing class of

nonimmigrant aliens; it only alters the time frame for

the longstanding practical training aspect of F-1 status.

2. Petitioners—a group of three representative or-

ganizations and eleven individuals trained in computer

programming, engineering or other technical fields—

filed suit under the Administrative Procedures Act

(APA) in the United States District Court for the Dis-

trict of New Jersey to enjoin the Secretary from imple-

menting the Rule. They asserted that they would suffer

from increased competition in the STEM job market

from F-1 status STEM students engaged in OPT who

could not be employed in the United States but for the

Rule’s changes to the duration of F-1 status. Petitioners

contended that the Rule is not in accordance with the

statute outlining F-1 status, 8 U.S.C. 1101(a)(15)(F)(),

and that promulgating the rule as an interim final rule

without opportunity for advance notice and comment

violated the APA’s notice-and-comment requirement,

5 U.S.C. 553(b). See Pet. App. 97a-11la (amended com-

plaint).

a. The district court denied petitioners’ motion for

a preliminary injunction. Pet. App. 23a-33a. It began by

noting “serious questions related to [petitioners’] stand-

ing,” and ordered petitioners to show cause why their

complaint should not be dismissed for lack of standing.

Id. at 26a, 33a. The district court further found petition-

ers’ claims unlikely to succeed on the merits because

Congress had granted the Secretary broad authority for

carrying out the INA in general, and for specifying “the

time period in which nonimmigrants can remain in the

country” in particular. /d. at 28a. The district court

7

also found the other relevant factors to weigh against

granting the requested injunction. /d. at 28a-32a.

b. Following further briefing, the district court dis-

missed the complaint for lack of Article III standing, for

lack of prudential standing, and in the alternative for

failure to state a claim upon which relief may be grant-

ed. Pet. App. 13a-22a. The district court concluded that

petitioners lacked Article III standing on three inde-

pendent grounds: First, they failed to establish an in-

jury-in-fact from mere increased competition in the job

market; such an injury was not “concrete and particular-

ized” or “actual or imminent,” rather than “conjectural

or hypothetical.” /d. at 15a-16a. Second, they failed to

demonstrate a causal nexus between their alleged inju-

ries and the Rule, because none of the petitioners is reg-

ulated by the Rule and they could not “show that the

[Rule] is * * * responsible for their alleged injuries,”

given that “[petitioners] are currently unemployed or

under-employed as a result of a wide range of independ-

ent factors.” Jd. at 17a & n.5. Third, the district court

found petitioners’ alleged injuries were not likely to be

redressed by a favorable decision because invalidating

the Rule would neither eliminate competition for jobs in

petitioners’ fields nor guarantee the improved economic

conditions they sought. See zd. at 17a-18a.

The district court further held that petitioners had

not established prudential standing, for two independent

reasons. First, it found that petitioners’ objection to the

increased competition for jobs posed by the Rule was

merely a generalized grievance about government immi-

gration policy. Pet. App. 18a. Second, the district court

held that petitioners were not within the “zone of inter-

ests” protected by the Rule, which was intended to im-

prove the domestic high-technology industry’s competi-

8

tive position for students and workers while easing visa

application procedures for OPT students, not to increase

competition for such jobs or harm American workers.

Id. at 18a-19a.

Turning in the alternative to the merits, the district

court held petitioners could not establish that the Rule

exceeds the Secretary’s authority under 8 U.S.C.

1103(a)(3) to “establish such regulations * * * as [s]he

deems necessary for carrying out h[er] authority under

the provisions of [the INA].” Pet. App. 20a. The court

noted that Congress specifically conferred on the Secre-

tary authority to set the periods of time for which

nonimmigrant aliens may remain in the country, and the

court found it appropriate to defer to the Secretary’s

exercise of that authority here. /d. at 20a n.10 (citing,

inter alia, 8 U.S.C. 1184(a)(1)). Finally, the district

court concluded that petitioners offered no nonspecula-

tive challenge to the Secretary’s determination that

“good cause” exited under 5 U.S.C. 553(b)(B) for giving

the Rule immediate effect without a notice and comment

period, because the public interest would have been

harmed by forcing approved H-1B visa holders then in

F-1 status to leave the United States upon expiration of

their F-1 status. Pet. App. 21a.

3. The court of appeals affirmed the dismissal of peti-

tioners’ complaint on prudential standing grounds in an

unpublished opinion. Pet. App. la-lla. It held (on rea-

soning different from the district court’s) that petition-

ers’ employment concerns were not within the zone of

interests protected by & U.S.C. 1101(a)(15)(F)(i), the

basis of their challenge.

The court explained that to establish prudential

standing, a plaintiff must show that the interest it seeks

to vindicate “is arguably within the zone of interests to

9

be protected . . . by the statute . . . in question.”

Pet. App. 5a (citing Association of Data Processing

Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)). For

those purposes, the court noted, the “statute . . . in

question” encompasses the provision allegedly violated

by the administrative action and provisions having an

“integral relationship” to it, but the test “should not be

applied so loosely—{s|]uch as by deeming each section of

an act ‘integrally related’ to all other sections—as to

render it meaningless.” /bid. (citing Air Courier Con-

ference of Am. v. American Postal Workers Union, 498

U.S. 517, 529-530 (1991)).

Applying that test, the court of appeals rejected peti-

tioners’ argument that the relevant statute here is the

entire INA, noting that this Court has “squarely disal-

lowed such a kitchen-sink approach * * * and requires

litigants to identify the relevant provisions with some

particularity.” Pet. App. 6a (citing Air Courter Confer-

ence, 498 U.S. at 529-30). The court of appeals found

the relevant provision here to be “the one [petitioners |

allege [the Secretary] actually violated: 8 U.S.C.

§ 1101(a)(15)(F)(Gi), defining F-1 status.” Jbid. The

court stressed that petitioners “never argue precisely

why [their asserted competitive] injury arguably falls

within the zone of interests protected by [Section]

1101(a)(15)(F)G) in particular,” and accordingly found

that petitioners lacked prudential standing. /d. at 8a.

Canvassing the leading decisions from the D.C. Cir-

cuit addressing prudential standing to challenge deci-

sions allowing particular classes of aliens into the United

States, the court of appeals recognized that domestic

workers have been held to have prudential standing

when the statutory provision at issue contained “lan-

guage conditioning entry into the United States on non-

10

interference with domestic labor conditions,” Pet. App.

10a, but have been held to lack prudential standing when

the particular statutory provision at issue contained

no such language. See id. at 8a-10a. In the former cate-

gory, the court of appeals pointed to /nternational Un-

ion of Bricklayers & Allied Craftsmen v. Meese,

761 F.2d 798 (D.C. Cir. 1985), which found prudential

standing in a case involving the Secretary of Labor’s

certification under current 8 U.S.C. 1182(a)(5)(A)() that

admission of certain aliens would not adversely affect

domestic workers’ wages and working conditions. See

Pet. App. 9a-10a. In the latter category, the court of

appeals pointed to Federation for American Immigra-

tion Reform, Inc. v. Reno, 93 F.3d 897 (D.C. Cir. 1996),

cert. denied, 521 U.S. 1119 (1997), which found no pru-

dential standing in a case concerning an exercise of the

Attorney General’s parole authority under 8 U.S.C.

1182(d)(5)(A)). See Pet. App. 8a-9a.

The court of appeals concluded that such concerns

were not within the zone of interests protected by Sec-

tion 1101(a)(15)(F)(i) because “the F-1 status provision

contains no language conditioning entry into the United

States on noninterfererence with domestic labor condi-

tions,” and because Congress had not otherwise ex-

pressed its intent by, for example, adding such language

to Section 1101(a)(15)(F)(i), despite many opportunities

to do so. Pet. App. 10a-11a.

ARGUMENT

The court of appeals’ unpublished decision is correct

and consistent with other appellate decisions on pruden-

tial standing in the immigration context. Such eases

arise only infrequently, and they typically turn on case-

specific assessments of the particular statutory provi-

11

sion at issue. Moreover, as the district court recog-

nized, prudential standing is only one of many defects in

petitioners’ case: they also cannot establish Article III

standing and their underlying claims are meritless.

Further review is not warranted.

1. The court of appeals’ decision is correct and docs

not reflect any disagreement among the courts of ap-

peals concerning prudential standing under the particu

lar statutory provision at issuc here.

a. Petitioners contend that the court of appeals

erred both in determining that the prudential standing

inquiry here focuses on 8 U.S.C. 1101(a)(15)(F’)(i), rather

than “the immigration laws” writ large, see Pet. 18-20,

and in concluding that domestic worker protection is

not within the zone of interests protected by Section

1101(a)(15)(F)(i), see zd. at 20-23. Neither contention is

correct.

As the court of appeals correctly recognized, petition-

ers’ position “that the relevant statute is the entire

INA” is squarely foreclosed by this Court’s decision in

Air Courier Conference of America v. American Postal

Workers Union, 498 U.S. 517 (1991). Air Courier Con-

ference concerned the Postal Service’s adoption of a rule

that permitted private carriers to compete with it in cer-

tain international markets; postal employees challenged

the rule, arguing that it would harm their interests by

reducing the volume of postal work for them to perform.

See 2d. at 519-521. The Court recognized that the stat-

utes governing the Postal Service’s monopoly (and the

challenged rule) were enacted along with statutes gov-

erning postal labor-management relations, see id. at

528-529, but explained that “to hold that the relevant

statute in this case is the [entire package of laws], with

all its various provisions * * * could deprive the zone-

12

of-interests test of virtually all meaning.” /d. at 529-530

(internal quotation marks omitted). The same is true

here: portions of the immigration laws doubtless em-

brace domestic worker protection, see Pet. App. 9a-10a,

but a court cannot “accept this level of generality,” Air

Courier Conference, 498 U.S. at 529-530.

Instead, “the relevant statute [under the APA] of

course, is the statute whose violation is the gravamen of

the complaint.” Air Courier Conference, 498 U.S. at 529

(quoting Lujan v. National Wildlife Fed’n, 497 U.S. 871,

886 (1990)) (brackets in original). Here, that is 8 U.S.C.

1101(a)(15)(F)(i)—the only immigration provision cited

in petitioners’ amended complaint. See Pet. App. 97a-

1lla. As the court of appeals put it, “[t]he relevant pro-

vision here is the one [petitioners] allege [the Secretary|

actually violated: 8 U.S.C. 1101(a)(15)(F)(i), defining

F-1 status.” /d. at 6a.

The court of appeals correctly concluded that

8 U.S.C. 1101(a)(15)(F)(i) does not embrace worker pro-

tection within its zone of interests. The foremost indica-

tion of that is the provision’s text: There is no language

in 8 U.S.C. 1101(a)(15)(F)(i) that prohibits an F-1 status

student from working; indeed, if there were, students

participating in OPT would be in violation of 8 U.S.C.

1101(a)(15)(F)(i).”

* It may be that petitioners’ contrary view—that the absence of

statutory language authorizing F-1 status students to work absolutely

bars such aliens from working—would bring their claims within the

zone of interests protected by the provision. But that interpretation

cannot be correct, because it would create at least two grave contradic-

tions. First, a canon that provisions of the INA prohibit anything not

expressly permitted would nullify the Secretary’s authority to adminis-

ter the INA, because the Secretary would have no discretion to author-

ize anything not already permitted by the INA itself. Congress has

clearly indicated otherwise in delegating broad authority to the Secre-

13

Text aside, there is no other indication that domestic

worker protection is within the zone of interests pro-

tected by 8 U.S.C. 1101(a)(15)(F)(i). As petitioners con-

cede (Pet. 11), practical training has been permitted for

over 60 years. See Pet. App. 10a; pp. 2-3 and note 1,

supra. Yet despite this long history of F’-1 status stu-

dents engaging in practical training, Congress has re-

peatedly amended Section 1101(a) (most recently on

October 10, 2008, after promulgation of the Rule) with-

out addressing domestic worker protection. See Pet.

App. 10a (citing Special Immigrant Nonminister Reli-

gious Worker Program Act, Pub. L. No. 110-391, § 2(a)-

(b), 122 Stat. 4193). That acquiescence has great force

when, as here, administration of the statute in question

is committed in large measure to agency discretion. Cf.

Lorillard v. Pons, 434 U.S. 575, 580 (1978).°

tary to administer the INA and set the terms and conditions of nonim

migrant aliens’ presence in the United States. See 8 U.S.C. 1103(a)(3),

1184(a)(1). Second, petitioners’ reliance on negative implication would

“deprive the zone-of-interests test of virtually all meaning.” Air

Courier Conference, 498 U.S. at 530. Any plaintiff with an injury-in-fact

would also have prudential standing because either his grievance would

be addressed by the text of the statute (and thus be within the statute’s

zone of interests), or it would not (in which case, petitioners would say,

the omission bespeaks an interest in withholding permission).

* Petitioners’ asserted nontextual evidence of congressional intent

(Pet. 21-22) is similarly unpersuasive. The Immigration Reform and

Control Act of 1986 (IRCA), Pub. L. No. 99-6038, 100 Stat. 3359, ad-

dressed foreign students generally (among many other subjects).

IRCA is irrelevant because this case concerns what students in F-1

status are permitted to do when lawfully present in the United States,

while IRCA is largely concerned with aliens who are not lawfully

present in the United States. More to the point, nothing in IRCAdraws

a connection between domestic labor protections and F-1 status stu-

dents. The 1990 House Judiciary Committee Report petitioners cite

(see Pet. 21) is unhelpful because it is not connected to any statu

14

b. Petitioners cite several cases in support of their

claim that the unpublished decision below conflicts with

other courts of appeals’ immigration decisions. Pet. 18,

24-28. None, however, shows any active disagreement

among the circuits.

First, petitioners cite Ahmed v. United States,

480 F.2d 531, 532 (2d Cir. 1973), and Patel v. INS,

811 F.2d 377 (7th Cir. 1986), for the proposition that

“protection of domestic workers was among Congress’s

concerns in enacting and re-enacting the F’-1 status pro-

vision.” Pet. 24. But as an initial matter, neither case

raised or addressed a question of prudential standing.

That aside, although both cases concerned F-1 visa hold-

ers, the illegality of the alien’s conduct in each case

traced to his violation of a separate condition on his

presence in the United States that he not obtain employ-

ment without prior approval—a condition not in 8 U.S.C.

1101(a)(15)(F')(i), but imposed instead by a regulation.’

See Patel, 811 F.2d at 378 & nn.2-3; Ahmed, 480 F.2d at

532-533 & nn.1-2. At most, therefore, Ahmed and Patel

illustrate the general proposition that sometimes the

immigration laws are administered with a view to pro-

tection of domestic workers. But as explained above,

this Court’s zone-of-interests jurisprudence—Air Cou-

rier Conference in particular—does not permit a would-

be plaintiff to frame the inquiry at such a high level of

generality.

Second, petitioners take issue with the court of ap-

peals’ reading of D.C. Circuit prudential standing cases.

tory language controlling F'-1 status; at most, it speaks to Congress’s

intent in revising the terms of other nonimmigrant alien statuses.

* Such regulations were formerly promulgated under the authority

granted to the Attorney General in 8 U.S.C. 1184(a)(1); that authority

has been transferred to the Secretary by 6 U.S.C. 202 and 557.

15

See Pet. 24-28. But the court of appeals correctly ex-

plained how its holding was consistent with both /nter-

national Union of Bricklayers & Allied Craftsmen v.

Meese, 761 F.2d 798 (D.C. Cir. 1985) (Bricklayers), and

Federation for American Immigration Reform, Inc. v.

Reno, 93 F.3d 897 (D.C. Cir. 1996) (FAR), cert. denied,

521 U.S. 1119 (1997). See Pet. App. 8a-1 1a.

Bricklayers, on the one hand, found domestic work-

ers to have prudential standing in a case challenging the

issuance of visas allegedly in violation of 8 U.S.C.

1101(a)(15)(H) and 1182(a)(14) (1982). It reached that

conclusion because those provisions permit aliens to en-

ter the United States “if unemployed persons capable of

performing [particular] service or labor cannot be found

in this country,” and “the employment of such aliens will

not adversely affect the wages and working conditions

of the workers in the United States similarly employed.”

Bricklayers, 761 F.2d at 800. As the D.C. Circuit ex-

plained, “(tlhe wording of the statute gives a clear indi-

eation of the interests which [Section 1182(a)(14) (1982) ]

was designed to protect” and “indicates congressional

concern for and a desire to protect the interests of the

American workforce.” /d. at 804.°

FAIR, by contrast, rejected Florida residents’ argu-

ment that they had prudential standing to challenge the

° Petitioners are mistaken in asserting (Pet. 27) that Bricklayers did

not concern an alleged violation of the “H” visa provisions. ‘The

plaintiffs in Bricklayers “charge[{d} that the [challenged instruction]

promulgated by the INS violates the pattern set forth in (8 U.S.C.

1101(a)(15)(H) and 1182(a)(14) (1982)] * * * as to the proper manner

by which nonimmigrant aliens shall be admitted to perform labor.”

761 F.2d at 801. By contrast, petitioners’ amended complaint asserts

only that the Secretary has improperly exercised her authority under

8 U.S.C. 1101(a)15)(F i). See Pet. App. 97a-111a.

16

Attorney General’s parole and adjustment of status of

Cuban nationals. The prudential standing argument was

premised on the theory that the immigration laws pro-

tected people in localities likely to be affected by an in-

flux of immigrants. See F’A/R, 93 F.3d at 900-904. The

D.C. Circuit rejected that argument because the plain-

tiff “ha[d] pointed to neither language in the statute on

which it relies” nor “legislative history that even hints at

a concern about regional impact.” /d. at 901.

The decision below is consistent with both Bricklay-

ers and FAIR. In all three cases, the courts ascertained

the zone of interests of the provision in question by look-

ing to the statutory language and other indicia of con-

gressional intent. Petitioners selectively quote the deci-

sions in an attempt to suggest a conflict of legal princi-

ples with the Third Circuit.® But the different outcomes

simply reflect different interests protected by different

provisions, revealed when the courts focused on “the

provisions under which the suit was brought” and “pro-

visions having an ‘integral relationship’ with [those] pro-

visions,” FAIR, 93 F.3d at 904 (quoting Air Courier

Conference, 498 U.S. at 530).

Finally, the decision below is also consistent with

the holding on prudential standing in /nternational

Longshoremen’s & Warehousemen’s Union v. Meese,

891 F.2d 1374 (9th Cir. 1989) JLWU). There, the Ninth

Circuit held, in a two-sentence ruling, that protection of

° For example, petitioners quotes F'A/R’s statement that “[wle do

not believe that an affirmative signal of Congressional intent to permit

a Suit is required for a finding of prudential standing,” Pet. 26 (quoting

93 F.3d at 902), but they ignore the F'A/R court’s very next statement,

“But we have also held that the absence ofa clear indication of congres-

sional intent to forbid the suit does not automatically confer standing on

the plaintiff.” bed.

17

domestic harbor worker jobs was within the zone of in-

terests of 8 U.S.C. 1101(a)(15)(D), which permits non-

immigrant alien vessel crewmembers to enter the Uni-

ted States, so long as they are serving “in any capacity

required for normal operation and service on board a

vessel.” Although Section 1101(a)(15)(D) is in some re-

spects phrased similarly to Section 1101(a)(15)(F)(i), the

former is expressly directed at regulating the employ-

ment of nonimmigrant alien crewmembers, while the

latter does not evince concern for employment at all.

Moreover, the Ninth Circuit’s reasoning in JLWU was

that “[a] primary purpose of the immigration laws

* * * is to protect American laborers.” 891 F.2d at

1379. This Court rejected that sort of generalized zone-

of-interests inquiry in Azr Courier Conference, supra.

Air Courier Conference was decided after /LWU, and

given an opportunity, the Ninth Circuit may reexamine

that aspect of 7LWU in light of Atr Courier Conference.

ce. In all events, cases raising prudential standing

questions under particular provisions of the immigration

laws arise infrequently, and petitioners admit as much.

See Pet. 19 (characterizing the opinion below as “the

first post-1990 decision on foreign student work authori-

zation”). Petitioners suggest that the court of appeals

adopted a per se rule that a plaintiff has prudential

standing only if he can point to express language placing

him within the statute’s zone of interests. See Pet. 19,

25,27. The court of appeals’ reasoning is not so categor-

ical; it considered other indicia of congressional intent,

such as Congress’s longstanding acquiescence in admin-

istrative rules permitting F-1 status students to work.

See Pet. App. 10a.

Thus, this case does not present any large question

of prudential standing doctrine. At bottom, petitioners

Re

simply disagree with the court of appeals’ assessment of

the zone of interests protected by a particular provision

of the INA, and posit that a generalized interest in

worker protection in the immigration laws suffices to

confer prudential standing on them. Such a narrow and

infrequently arising question does not merit this Court’s

review, especially when addressed, as in this case, in an

unpublished decision.

2. Even if there were an active dispute among the

courts of appeals implicating the question presented,

this case would be an undesirable vehicle for reaching a

question of prudential standing because—as the district

court recognized below—petitioners lack Article III

standing and their underlying claims are meritless.

a. As the district court cataloged in some detail, Pet.

App. 14a-18a, petitioners lack Article III standing to

challenge the Rule:

[T]he irreducible constitutional minimum of standing

contains three elements. First, the plaintiff must

have suffered an “injury in fact”—an invasion of a

legally protected interest which is (a) conerete and

particularized, and (b) actual or imminent, not con-

jectural or hypothetical. Second, there must be a

causal connection between the injury and the conduct

complained of—the injury has to be fairly traceable

to the challenged action of the defendant, and not the

result of the independent action of some third party

not before the court. Third, it must be likely, as op-

posed to merely speculative, that the injury will be

redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561

(1992) (internal quotation marks, alterations, and cita-

tions omitted). Petitioners can show none of these.

19

Injury in fact. Petitioners have suffered no injury in

fact because they cannot identify a job for which they

were not hired, or from which they were fired. Instead,

they assert that they suffer an injury from increased

competition for jobs from nonimmigrants. But in the

courts below, petitioners cited, and the government is

aware of, no case holding that increased competition for

employment is sufficiently “concrete and particularized”

and not “hypothetical” to qualify as an injury in fact.

And indeed, to recognize such an injury would render

the injury-in-fact requirement almost meaningless in the

context of challenges to government regulations, be-

cause the very nature of regulations is to affect the con-

duct of—and hence competition among—individuals or

business. See Gov’t C.A. Br. 25-31.

Causal connection. Petitioners also cannot establish

a causal connection between the Rule and their putative

injury. If they are unable to obtain employment on the

terms they desire, that can be due in only the most at-

tenuated and speculative way to a regulation that per-

mits a limited class of workers (about 0.2% of the job

pool cited by petitioners, see Gov’t C.A. Br. 37) to re-

main employed in the United States for a few months

longer than they were permitted prior to the Rule. See

id. at 31-35.

Redressability. For the same reasons that petition-

ers cannot show that their alleged injuries are caused by

the Rule, they cannot show how a decision invalidating

the Rule would improve their job prospects. With or

without the Rule, employers could still prefer or recruit

OPT students, OPT students could still seek H-1B visas,

20

and petitioners could still have difficulty finding a job or

have their wages depressed. See Gov’t C.A. Br. 36-39.’

b. Petitioners’ claims also fail on the merits. See

Gov’t C.A. Br. 44-60. As noted above (see p. 6, supra),

petitioners brought a procedural APA claim asserting

that the Secretary improperly dispensed with the ad-

vance notice-and-comment requirement of 5 U.S.C.

553(b), and substantive claims asserting that the Rule

conflicted with 8 U.S.C. 1101(a)(15)(F)(i).

As the district court recognized (Pet. App. 19a-21a,

26a-28a), both claims are meritless: The substantive

claim fails beeause the Rule merely sets the “time” for

which, and the “conditions” under which, a class of non-

immigrant aliens is permitted to be present in the Uni-

ted States—-matters that are delegated to the Secretary,

see note 4, supra. The fact that the condition in ques-

tion (practical training) has long been a feature of immi-

gration law only underscores the lawfulness of the Secre-

tary’s regulation of this field. As for petitioners’ proce-

dural claim, the APA permits dispensing with the usual

notice-and-comment procedures “when the agency for

good cause finds * * * that [such procedures] are im-

practicable, unnecessary, or contrary to the public inter-

est.” 5 U.S.C. 553(b)(B). Here, confronted with an im-

pending Cap-Gap period affecting many foreign stu-

dents, the need for the United States to be more com-

petitive in attracting foreign students, and domestic busi-

nesses’ need to recruit and retain skilled STEM work-

ers, the Secretary found that the public interest would

” Petitioners would also lack standing because they assert only a

“generally available grievance about government”; the interest they

propose to vindicate is shared by the public as a whole, and the relief

they seek would “no more directly and tangibly benefit{] [them] than

* * * the public at large.” Defenders of Wildivfe, 504 U.S. at 574.

21

be disserved by allowing another visa cycle to run (as a

full notice-and-comment rulemaking would have necessi-

tated). See Pet. App. 69a-7la. In the face of that rea

sonable finding, petitioners “failed to alleged facts be

yond a speculative level that tend to establish that [the

Secretary | acted without good cause in giving the [Rule]

immediate effect.” /d. at 21a.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

Solicitor General

TONY WEST

Assistant Attorney General

DAVID J. KLINE

VICTOR M. LAWRENCE

SAMUEL P. GO

Attorneys

MARCH 2010