Save Jobs USA v. U.S. Dep't of Homeland Sec.

210 F.Supp.3d 1

SAVE JOBS USA, Plaintiff,

v.U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant.

Case No. 15-cv-0615 (TSC)

United States District Court, District of Columbia.

Signed September 27, 2016

Michael Meriwether Hethmon, John Michael Miano, Washington, DC, for Plaintiff.

Erez Reuveni, Glenn M. Girdharry, Sarah S. Wilson, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

In this action brought under the Administrative Procedure Act ("APA"), Plaintiff Save Jobs USA challenges the Department of Homeland Security's ("DHS") promulgation of a final rule allowing certain H-4 visa holders to apply for employment authorization. See Employment Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg. 10,284 (Feb. 25, 2015) (codified at 8 C.F.R. §§ 214.2, 274a) (the "H-4 Rule"). Earlier in this case, Plaintiff moved for a preliminary injunction, which this court denied on the grounds that it failed to establish imminent irreparable injury. 105 F.Supp.3d 108 (D.D.C.2015). Both parties now move for summary judgment, and Defendant additionally moves to strike the appendix attached to Plaintiff's motion. Having considered the parties' filings, and for the reasons stated herein, Plaintiff's motion for summary judgment is DENIED and Defendant's motion for summary judgment is GRANTED. Defendant's motion to strike is GRANTED IN PART and DENIED IN PART.

I. FACTUAL BACKGROUND

The facts of this case were set forth in full in this court's preliminary injunction opinion, 105 F.Supp.3d at 110–12, and thus only a brief description is necessary here. Plaintiff, an organization whose members are former information technology ("tech") workers who were replaced by foreign workers with H-1B visas, sued DHS under the APA to block the H-4 Rule from taking effect.

Subsection H of the Immigration and Naturalization Act ("INA") authorizes DHS to admit foreign workers into the United States to engage in certain types of labor. 8 U.S.C. § 1101(a)(15)(H). Subsection H-1B permits employers to hire foreign workers in a "specialty occupation," most relevantly tech jobs, for an initial period of three years, extendable for three additional years. Id. Spouses and minor dependents of H-1B visa holders are permitted to reside in the U.S. with H-4 visas. Id. Employers of H-1B visa holders who wish to transition to legal permanent resident ("LPT") status must obtain a Department of Labor certification that there are no U.S. workers who are able, willing, qualified, and available to perform the job, and that the wages and working conditions of American workers will not be adversely affected. 8 U.S.C. §§ 1255(a), 1154, 1153(b)(2)–(3), 1182(a)(5)(A). Due to frequently oversubscribed quotas for the number of H-1B visa holders who may transition to LPT status, there are long delays in this process, forcing many visa holders who have applied to transition to leave the U.S. when their visas expire. To prevent disruption for employers and families, Congress passed the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21"), which permits extending H-1B visas past the sixth year for those applying for LPT status.

The H-4 Rule at issue enables a subset of H-4 visa holders to apply for Employment Authorization Documents ("EADs"), which would allow them to work in the U.S. To be eligible, the H-4 visa holder's H-1B spouse must be transitioning to LPT status by way of either an extension past their sixth year under the AC21 or having received an approved labor certification (called a Form I-140 petition).

The rule aims to alleviate the financial and emotional burden placed on H-1B visa holders and their families during this lengthy period in which only one spouse may be employed. It underwent notice-and-comment procedures, see 79 Fed. Reg. 26,886 (May 12, 2014) (proposed rule), and the final rule took effect on May 26, 2015, see 80 Fed. Reg. 10,284 (Feb. 25, 2015). DHS expects as many as 179,600 H-4 visa holders to be able to apply for EADs in the rule's first year of implementation. 80 Fed. Reg. 10,285.

II. LEGAL STANDARD

In an APA action, the court's role at the summary judgment stage is to decide "as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Stuttering Found. of Am. v. Springer , 498 F.Supp.2d 203, 207 (D.D.C.2007). A court must set aside an agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The plaintiff bears the burden of establishing the invalidity of the agency's action. See Fulbright v. McHugh , 67 F.Supp.3d 81, 89 (D.D.C.2014). The court's review is "highly deferential" and begins with a presumption that the agency's actions are valid. Envtl. Def. Fund, Inc. v. Costle , 657 F.2d 275, 283 (D.C.Cir.1981). The court is "not empowered to substitute its judgment for that of the agency," Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), but instead must consider only "whether the agency acted within the scope of its legal authority, whether the agency has explained its decision, whether the facts on which the agency purports to have relied have some basis in the record, and whether the agency considered the relevant factors," Fulbright , 67 F.Supp.3d at 89 (quoting Fund for Animals v. Babbitt , 903 F.Supp. 96, 105 (D.D.C.1995) ). Thus, all that is required is that the agency's decisions provide "a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

III. DISCUSSION

A. Defendant's Motion to Strike

Defendant has moved, under Federal Rule of Civil Procedure 12(f), to strike Plaintiff's Appendix A (ECF No. 26-1), attached in support of Plaintiff's Motion for Summary Judgment (ECF No. 28). Defendant argues that the Appendix should be stricken, in whole or in part, because Plaintiff may not: (1) supplement the administrative record; and (2) attempt to establish standing with evidence that post-dates the Complaint.

As a general matter, a court must base its review of agency actions solely on the record before the agency when it made its decision, IMS, P.C. v. Alvarez , 129 F.3d 618, 623 (D.C.Cir.1997), though when necessary to establish standing, a plaintiff may "supplement the record to the extent necessary to explain and substantiate its entitlement to judicial review," Sierra Club v. EPA , 292 F.3d 895, 900 (D.C.Cir.2002). However, the "existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed," Lujan v. Defenders of Wildlife , 504 U.S. 555, 569 n. 4, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and thus a plaintiff may not supplement the record with materials that post-date the complaint in order to establish standing. See Tracie Park v. Forest Serv. of the U.S. , 205 F.3d 1034, 1037–38 (8th Cir.2000) (holding plaintiff may not "use evidence of what happened after the commencement of the suit" to show "a real and immediate threat" of injury); see also Perry v. Village of Arlington Heights , 186 F.3d 826, 830 (7th Cir.1999) ("It is not enough for [the plaintiff] to attempt to satisfy the requirements of standing as the case progresses. The requirements of standing must be satisfied from the outset.").

Plaintiff's Appendix A contains charts, tables, and data illustrating H-1 Visa Petitions filed and approved; quotes from the administrative record; a magazine article; job postings; and a printout of a website. The charts and data on pages 1–6, the Congressional Record excerpts on page 7–8, and the data tables on pages 9–12 may all be relevant for Plaintiff's standing arguments, and as such their inclusion is appropriate. Based on the date stamps, the job listings reproduced on pages 13–26 and the excerpts from the website "H4 Visa, A Curse" on pages 27–39 all post-date the Complaint. Plaintiff, without any supporting case law, theorizes that because it asserts standing based on an imminent injury caused by job competition, then these post-Complaint documents purportedly showing employers hiring H-4 visa holders retroactively proves the imminence of the injury at the time the Complaint was filed. The court is unpersuaded that these documents establish any injury, whether actual or imminent, to support this theory, and therefore will grant Defendant's motion as to pages 13–39, which will be stricken.

B. Standing

The court must first consider whether Plaintiff has standing to challenge DHS's promulgation of the H-4 Rule, as the court's power under Article III "exists only to redress or otherwise to protect against injury to the complaining party." Warth v. Seldin , 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The plaintiff bears the burden of proof to establish each of the elements of Article III standing. Arpaio v. Obama , 797 F.3d 11, 19 (D.C.Cir.2015) (citing Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ). Thus, Save Jobs must show: "(1) an ‘injury in fact’ that is ‘concrete and particularized’ as well as ‘actual or imminent’; (2) a ‘causal connection’ between the injury and the challenged conduct; and (3) a likelihood, as opposed to mere speculation, ‘that the injury will be redressed by a favorable decision.’ " Ark Initiative v. Tidwell , 749 F.3d 1071, 1075 (D.C.Cir.2014) (quoting Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130 ).

When an agency's action relates to one party but a third party alleges harm, the indirectness of the injury does not deprive that third party of standing. Warth , 422 U.S. at 505, 95 S.Ct. 2197. However, Plaintiff, as such a third party, faces a burden that is "substantially more difficult to meet the minimum requirement of Art. III: to establish that, in fact, the asserted injury was the consequence of the defendants' actions, or...