No. 15-5239 IN THE UNITED STATES COURT OF APPEALS FOR …€¦ · No. 14-cv-529 The Hon. Ellen...

No. 15-5239

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Washington Alliance of Technology Workers,

Plaintiff-Appellant,

v.

United States Department of Homeland Security, Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

No. 14-cv-529 The Hon. Ellen Segal Huvelle

DEFENDANT-APPELLEE’S RESPONSE TO PLAINTIFF- APPELLANT’S MOTION TO VACATE THE DISTRICT COURT’S

ORDER GRANTING RELIEF UNDER FED R. CIV. P. 60(b)

BENJAMIN C. MIZER JOSHUA S. PRESS Principal Deputy Assistant Attorney Trial Attorney General United States Department of Justice

Civil Division LEON FRESCO Office of Immigration Litigation Deputy Assistant Attorney General District Court Section

P.O. Box 868, Ben Franklin Station WILLIAM C. PEACHEY Washington, DC 20044

Director Phone: (202) 305-0106 [email protected]

GLENN M. GIRDHARRY Assistant Director Attorneys for Defendants-Appellees

USCA Case #15-5239 Document #1600170 Filed: 02/22/2016 of 25

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TABLE OF CONTENTS

INTRODUCTION .................................................................................................... 1

STATEMENT OF JURISDICTION ...................................................................... 1

STANDARD OF REVIEW ..................................................................................... 2

SUMMARY OF THE ARGUMENT ...................................................................... 2

ARGUMENT ............................................................................................................ 3

I. THE DISTRICT COURT HAD JURISDICTION TO PRESERVE THE STATUS QUO BY AMENDING ITS PRIOR ORDER............................. 3

II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION ........... 8

A. The Creation Of A “Temporary Regulatory Vacuum” Would Be Severely Harmful To The Public Interest .............................................. 9

B. Rule 60(b)(6) Is The Only Appropriate Subsection For Relief Given The Extraordinary Circumstances Presented In This Case ..................................................................................................... 12

III. IF THE DISTRICT COURT WAS WITHOUT JURISDICTION, ITSRULING SHOULD BE TREATED AS AN INDICATIVE RULING ... 14

CONCLUSION ....................................................................................................... 16

CERTIFICATE OF SERVICE ............................................................................. 17


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TABLE OF AUTHORITIES

CASE LAW

Arnold v. Ky. Catalog Sales, Inc., 2012 WL 37532 (W.D. Ky. Jan. 9, 2012) ............................................................. 8

Boyko v. Anderson, 185 F. 3d 672 (7th Cir. 1999) ..............................................................................15

Burlington N., Inc. v. United States, 459 U.S. 131 (1982)…………………………………………………………… 10

Cobell v. Norton, 310 F. Supp. 2d 77 (D.D.C 2004) ........................................................................ 7

Council v. Sw. Marine, Inc., 242 F.3d 1163 (9th Cir. 2001) ............................................................................... 5

Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675 (D.C. Cir. 1996) (per curiam)............................................................ 1

Gonzalez v. Crosby, 545 U.S. 524 (2005) .............................................................................................. 3

*Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam) .......................................................................4, 6

Honeywell Int’l Inc. v. Nikon Corp., No. 04–1337, 2010 WL 744535 (D. Del. Mar. 2, 2010) ....................................... 6

In re Cremida’s Estate, 14 F.R.D. 15 (D. Alaska 1953) .............................................................................. 9

In re Korean Air Lines Disaster of Sept. 1, 1983, 156 F.R.D. 18 (D.D.C. 1994) ......................................................................... 8, 12

*Authorities upon which the Department chiefly relies are marked with asterisks.


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In re Mid-Atl. Fuels, Inc., 121 B.R. 207 (Bankr. S.D.W. Va. 1990) ............................................................... 9

Indus. Ass’n v. Bd. of Governors of the Fed. Reserve Sys., 628 F. Supp. 1438 (D.D.C. 1986) ......................................................................... 7

Klapprott v. United States, 335 U.S. 601 (1949) .............................................................................................. 9

Kusay v. United States, 62 F.3d 192 (7th Cir. 1995) ...............................................................................5, 6

Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90 (3d Cir. 1988) .................................................................................... 6

Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015) .............................................................................. 2

Monzillo v. Biller, 735 F.2d 1456 (D.C. Cir. 1984) ............................................................................ 8

Natural Res. Def. Council, Inc. v. Gorsuch, 685 F.2d 718 (D.C. Cir. 1982) ............................................................................10

*Newton v. Consol. Gas Co. of N.Y., 258 U.S. 165 (1922) ..................................................................................... 2, 4, 7

Nuclear Info. & Resource Serv. v. U.S. Nuclear Reg. Comm’n, 918 F.2d 189 (D.C. Cir. 1990) ............................................................................11

Richards v. Linder & Associates, PC (In re Richards), 241 BR 769 (Bankr. D.D.C. 1999) ......................................................................... 6

Rivera v. United States, 761 F. Supp. 126 (S.D. Fla. 1991) ......................................................................... 9

Salazar ex rel. Salazar v. District of Columbia, 633 F.3d 1110 (D.C. Cir. 2011) ............................................................................12


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*Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506 (D.C. Cir. 1983) ................................................................. 7, 10, 11

United Bhd. of Carpenters & Joiners of Am. v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n of U.S. & Can., 721 F.3d 678 (D.C. Cir. 2013) ................... 2

United States v. El-O-Pathic Pharmacy, 192 F.2d 62 (9th Cir. 1951) ................................................................................... 6

U.S. Bancorp Mort. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994) ................................................................................................ 9

Venen v. Sweet, 758 F.2d 117 (3d Cir. 1985) .................................................................................. 6

Wash. Alliance of Tech. Workers v. U.S. Dep’t of Homeland Sec., — F. Supp. 3d. —, 2016 WL 308775 (D.D.C. Jan. 23, 2016) ............... 10, 13, 14

FEDERAL STATUTES

5 U.S.C. § 553 ..........................................................................................................12

28 U.S.C. § 1291 ........................................................................................................ 1

FEDERAL RULES FOR CIVIL PROCEDURE

Fed. R. Civ. P. 60(b) ........................................................................................ passim

Fed. R. Civ. P. 62.1 ................................................................................................4, 5

TREATISES

20 James Wm. Moore et al., Moore’s Federal Practice § 303.32[2][b] (3d ed. 2015)………………………………………………………………….…... 4, 5, 6

11 Charles Alan Wright, Arthur Miller, & Mary Kay Kane, Federal Practice and Procedure § 2873 (3d ed. 2012) .........................................................................3, 4


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MISCELLANEOUS

Office of Mgmt. & Budget, RegInfo.gov (Feb. 22, 2016), Pending EO 12866 Regulatory Review, http://www.reginfo.gov/public/do/eoDetails?rrid=125948 12


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GLOSSARY

App’t Br. Appellant’s Brief

DHS Department of Homeland Security

F-1 Students Students admitted into the United States via F-1 visas. An F-1 visa is a nonimmigrant visa for international students wishing to study full-time in the U.S. to attend an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or language-training program. These students must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate and their school must be authorized to accept international students.

OPT

Optional Practical Training

2008 STEM OPT Extension Rule

Extending Period of Optional Practical Training or 2008 Rule Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions, 73 Fed. Reg. 18,944 (Apr. 8, 2008)

STEM Science, technology, engineering, and mathematics

Washtech Washington Alliance of Technology Workers (Plaintiff-Appellant)


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INTRODUCTION

Defendant-Appellee, the Department of Homeland Security (hereinafter,

“DHS” or “the Department”), hereby oppose Plaintiff-Appellant’s, Washington

Alliance of Technology Workers (“Washtech”), Motion To Vacate the District

Court’s Order Granting Relief Under Fed. R. Civ. P. 60(b). The reasons for DHS’s

opposition are simple: (1) the district court had jurisdiction under the Federal Rules

to extend its prior order staying vacatur of the 2008 STEM OPT Extension rule

despite Washtech’s pending appeal to this Court; (2) the district court did not abuse

its discretion in finding that there were “extraordinary circumstances” to warrant

relief under Rule 60(b)(6); and (3) thus, even if total jurisdiction had already

transferred to this Court, the district court’s extension of the stay of vacatur should

be treated as an “indicative ruling” under Rule 62.1—allowing this Court to

remand that aspect of the case for the district court to enter its order forthwith and

extend the stay of vacatur.

STATEMENT OF JURISDICTION

This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

The district court’s post-judgment order modifying the stay is final and appealable,

because it disposed completely of the issues raised in the post-judgment


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proceedings. See, e.g., Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675,

677 (D.C. Cir. 1996) (per curiam).

STANDARD OF REVIEW

This Court reviews jurisdictional issues de novo, Mobley v. CIA, 806 F.3d

568, 575 (D.C. Cir. 2015), and “review[s] the grant of a Rule 60(b) motion . . . for

abuse of discretion.” United Bhd. of Carpenters & Joiners of Am. v. Operative

Plasterers’ & Cement Masons’ Int’l Ass’n of U.S. & Can., 721 F.3d 678, 689–90

(D.C. Cir. 2013).

SUMMARY OF THE ARGUMENT

Washtech’s motion should be denied because the district court had

jurisdiction to modify its own order of August 12, 2015 and extend the stay of

vacatur of the 2008 STEM OPT Extension rule through May 10, 2016. Contrary to

Washtech’s insistence that Rule 62.1 stripped the district court of such jurisdiction,

American jurisprudence has long recognized that “after appeal[, a] trial court may,

if the purposes of Justice require, preserve the status quo until decision by the

appellate court.” Newton v. Consol. Gas Co. of N.Y., 258 U.S. 165, 177 (1922).

Moreover, because of Rule 60(b)(6)’s nature as an equitable “catch-all,” and

because extraordinary circumstances existed to justify the limited relief that the

Department of Homeland Security (“DHS”) sought below, the district court did not


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abuse its discretion under Rule 60(b)(6). The Court, therefore, should affirm the

district court’s grant of DHS’s Motion for Limited Relief under Rule 60(b)(6),

which extended the stay of vacatur through May 10, 2016.

In the event the Court grants Washtech’s motion and holds that the district

court was without jurisdiction under Rule 62.1, it should treat the district court’s

order as an “indicative ruling” under that same rule. If that were to occur, and

because vacatur of the 2008 STEM OPT Extension rule as of February 12, 2016

would directly affect tens of thousands of F-1 students, along with hundreds of

U.S. schools and technology sector employers, DHS respectfully requests that this

Court issue a remand to the district court as expeditiously as possible.

ARGUMENT

I. THE DISTRICT COURT HAD JURISDICTION TO PRESERVE THE STATUS QUO BY AMENDING ITS PRIOR ORDER Federal Rule of Civil Procedure 60(b) permits a party to seek relief from a

final judgment and request reopening of the case. Gonzalez v. Crosby, 545 U.S.

524, 528 (2005). A proper Rule 60(b) motion “attacks[] not the substance of the

federal court’s resolution of a claim on the merits, but some [other] defect[.]” Id.,

at 532. The time for moving for relief from judgment is limited, but “continues to

run while [a] case is pending on appeal.” 11 Charles Alan Wright, Arthur Miller, &


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Mary Kay Kane, Federal Practice and Procedure § 2873, at 598 (3d ed. 2012)

(“Wright and Miller”). At the same time, “[t]he filing of a notice of appeal is an

event of jurisdictional significance—it confers jurisdiction on the court of appeals

and divests the district court of its control over those aspects of the case involved in

the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)

(per curiam) (emphasis added). These competing concerns complicated things for

movants who, while their cases were pending on appeal, prayed for relief from a

district court’s original judgment. Rule 62.1 was promulgated to lay out a typical

process for “indicative rulings” and resolve a split of authority over whether

district courts had any jurisdiction to act on post-judgment motions while an appeal

was still pending. See Fed. R. Civ. P. 62.1 advisory committee’s note (2009).

Rule 62.1 was meant to “basically adopt[] the practice followed by most

courts” that there should be a process for allowing district courts to consider Rule

60(b) motions, Wright and Miller § 2873, at 598. But it was never intended to

entirely eliminate district courts’ power to “maintain the status quo during the

pendency of the appeal.” 20 James Wm. Moore et al., Moore’s Federal Practice

§ 303.32[2][b], at 303-78 (3d ed. 2015) (“Moore”). For example, it has long been

true that “after appeal[,] the trial court may, if the purposes of Justice require,

preserve the status quo until decision by the appellate court.” Newton v. Consol.


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Gas Co. of N.Y., 258 U.S. 165, 177 (1922). This and other exceptions were why the

Rules Advisory Committee specifically explained how “[t]he rules that govern the

relationship between trial courts and appellate courts may be complex, depending

in part on the nature of the order and the source of appeal jurisdiction. Rule 62.1

applies only when those rules deprive the district court of authority to grant relief

without appellate permission.” Fed. R. Civ. P. 62.1 advisory committee’s note

(2009).

Simply stated, Washtech’s motion assumes that Rule 62.1 cemented

exclusive appellate jurisdiction and was always meant to foreclose post-judgment

decisions by district courts. (App’t Mot. at 5–7.) “The principle of exclusive

appellate jurisdiction is not, however, absolute. . . . [D]istrict court[s] retain[]

jurisdiction during the pendency of an appeal to act to preserve the status quo.”

Nat’l Res. Def. Council v. Sw. Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001)

(internal citations omitted). Indeed, there are well-recognized “exception[s] to the

general rule [that are] grounded on the fact that [certain actions] do not involve the

merits of the case. Therefore the same issue is not placed concurrently before two

courts.” Moore § 303.32[2][b], at 303-79–80; see also Kusay v. United States, 62

F.3d 192, 194 (7th Cir. 1995) (Easterbrook, J.) (“Griggs notes an important

limitation on the rule that just one court at a time possesses jurisdiction: the


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doctrine applies only to ‘those aspects of the case involved in the appeal.’”

(quoting Griggs, 459 U.S. at 58)).

Under the auspices of preserving the status quo, district courts have always

retained jurisdiction to modify their own orders concerning a stay pending appeal.

See, e.g., Richards v. Linder & Associates, PC (In re Richards), 241 BR 769, 772

(Bankr. D.D.C. 1999) (concluding that “appellate jurisdiction . . . is not a bar to

this court’s modifying or enlarging the stay it has already granted” (citing United

States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79–80 (9th Cir. 1951) (“It is of

course generally the rule that when an appeal is perfected the district court loses

jurisdiction to take further action in the cause, but [there is a] long established right

of the trial court, after an appeal, to make orders appropriate to preserve the status

quo while the case is pending in the appellate court. Under old equity rule 74, 28

U.S.C.A. Appendix, 226 U.S. 670, the trial judge was permitted to make such an

order when he allowed the appeal, ‘at the time of such allowance’.”))). And courts

have consistently held that district courts may retain jurisdiction pending appeal

“to issue orders staying, modifying, or granting” forms of injunctive relief. Mary

Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 97 (3d Cir. 1988); see also Kusay 62

F.3d at 194; Venen v. Sweet, 758 F.2d 117, 120 n.2 (3d Cir. 1985); Honeywell Int’l

Inc. v. Nikon Corp., No. 04–1337, 2010 WL 744535, at *2 (D. Del. Mar. 2, 2010)


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(holding that district courts had jurisdiction to review motions to unseal,

“[b]ecause this rule is a judge-made doctrine premised upon prudential

considerations, . . . the rule should not be applied when to do so would defeat its

purpose of achieving judicial economy” (internal quotation marks omitted));

Cobell v. Norton, 310 F. Supp. 2d 77 n.10 (D.D.C 2004); Sec. Indus. Ass’n v. Bd.

of Governors of the Fed. Reserve Sys., 628 F. Supp. 1438, 1440 n.1 (D.D.C. 1986)

(noting that, pending appeal, district courts continue to “retain jurisdiction to . . .

modify, restore, or grant injunctions”).

To get around this ample body of case law, Washtech simply points to Rule

62.1 as brand new and asserts that the district court’s stay “arbitrarily alter[ed] the

nature of [the] question on appeal.” (App’t Br. at 7.) But far from “intrud[ing]

directly into the central issues awaiting appellate review,” (App’t Br. at 9) the

district court’s stay and limited extension were always meant to “preserve the

status quo until [a] decision by the appellate court” because that is precisely what

“the purposes of Justice require[d].” Newton, 258 U.S. at 177.

The Department takes the position that this doctrine survived Rule 62.1’s

2009 adoption of most courts’ prior practices, and believes avoiding the

“temporary regulatory vacuum,” Small Refiner Lead Phase-Down Task Force v.

EPA, 705 F.2d 506, 545 (D.C. Cir. 1983), as described by the district court is what


8

justice now requires. As will be further explained below, creating such regulatory

chaos might be “Washtech’s remedy,” (App’t Br. at 10) but immediately places

tens of thousands of F-1 students, along with many U.S. employers and educational

institutions into a very real legal limbo. That “remedy” is not what “Justice

require[s],” and the district court did what was within its power under Rules 60(b)

and 62.1 to avoid such an outcome: it extended its own stay of vacatur by a mere

88 days—preserving the status quo and, if Washtech’s stated goals are accurate,

prevented this case from being moot on appeal. See Monzillo v. Biller, 735 F.2d

1456, 1457 (D.C. Cir. 1984) (“Because the court’s order has expired on its own

terms, we dismiss these appeals as moot.”). And if the appeal were mooted, it is

entirely unclear under Washtech’s reasoning which court would actually have

jurisdiction.

II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION Regarding the substance of the district court’s disposition of the Rule 60(b)

motion, Washtech argues that the court made errors that, “collectively,” “represent

a significant abuse of discretion.” (App’t Br. at 9.) This argument is absolutely

without merit. “Rule 60(b)(6) is essentially an equitable catch-all provision,” In re


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Korean Air Lines Disaster of Sept. 1, 1983, 156 F.R.D. 18, 23 (D.D.C. 1994),1 that

“vest[s] . . . courts [with] sufficient [power] to enable them . . . to accomplish

justice.” In re Cremida’s Estate, 14 F.R.D. 15, 17 (D. Alaska 1953) (citing

Klapprott v. United States, 335 U.S. 601 (1949)). And, “[a]s always when federal

courts contemplate equitable relief, [their] holding[s] must . . . take account of the

public interest.” U.S. Bancorp Mort. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26

(1994).

A. The Creation Of A “Temporary Regulatory Vacuum” Would Be Severely Harmful To The Public Interest

In its brief, Washtech argues that the existence of a “temporary regulatory

vacuum” or, as the district court labeled it, a “regulatory gap,” is precisely the

remedy it seeks. Washtech simply wishes to “restore[] the regulatory scheme in

place from 1992 to 2008.” (App’t Br. at 10.) Such a statement completely ignores

the very real damage that would result if the older regulatory scheme were to be

“restored” overnight—the OPT employment authorization extension for F-1

1 See also Arnold v. Ky. Catalog Sales, Inc., 2012 WL 37532, at *1 (W.D. Ky.

Jan. 9, 2012) (describing Rule 60(b)(6) as an “equitable catch-all provision”); Rivera v. United States, 761 F. Supp. 126, 128 (S.D. Fla. 1991) (ruling that “the plaintiff’s Rule 60(b) motion falls within the equitable catch-all provision of Rule 60(b)(6). Courts liberally apply Rule 60(b)(6) to allow a claim to be heard on its merits[.]”); In re Mid-Atl. Fuels, Inc., 121 B.R. 207, 211 (Bankr. S.D.W. Va. 1990) (granting relief under Rule 60(b)(6) in order to prevent migration of hazardous


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students with completed STEM degree programs would no longer exist. This is

precisely the damage that the district court recognized as establishing a basis for

the stay of vacatur in the first place.

Appreciating what was at stake regarding the three-month extension of its

stay, the district court explained:

[T]he equities that warranted a stay in the first place—undue hardship to STEM OPT participants and employers—remain the same. The significance of that hardship cannot be overstated. . . . [T]here are approximately 23,000 STEM OPT participants; 2,300 dependents of STEM OPT participants; 8,000 pending applications for STEM OPT extensions; and 434,000 foreign students who might be eligible to apply for STEM OPT authorizations. If the stay is not extended, many of these people would be adversely affected, either by losing their existing work authorization, not being able to apply for the OPT extension, or not knowing whether they will be able to benefit from the extension in the future. And of course, the U.S. tech sector will lose employees, and U.S. educational institutions could conceivably become less attractive to foreign students.

Wash. Alliance of Tech. Workers v. U.S. Dep’t of Homeland Sec., — F. Supp. 3d.

—, 2016 WL 308775, at *4 (D.D.C. Jan. 23, 2016). On the one hand, the fact that

Washtech embraces these outcomes as its stated “remedy” speaks volumes about

why they disagree with the district court’s balancing of the equities. On the other

hand, this Court’s case law has already addressed past situations when “temporary

regulatory vacuums” would harm the public interest. See, e.g., Small Refiner, 705

substances and environmental harm to the public).


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F.2d at 545–46, 554 (citing Natural Res. Def. Council, Inc. v. Gorsuch, 685 F.2d

718, 728 (D.C. Cir. 1982) and Burlington N., Inc. v. United States, 459 U.S. 131

(1982) (holding that a court of appeals lacked the power to reinstate older rate rules

after it invalidated revised rate)).

Washtech downplays this Court’s prior decisions involving such prudence,

labeling Small Refiner as “inapposite to the current scenario” because it “was

litigated under the Clean Air Act.” (App’t Br. at 8 n.1.) This is at best a

mischaracterization. In Small Refiner, this Court invalidated an interim rule

regarding the lead-content standard for gasoline. 705 F.2d at 545. But because an

immediate return to the older standard would have been stricter for refineries and

created substantial difficulties in the refining industry, this Court believed it would

have been “irrational” to order the agency to return to it rather than allowing the

agency to choose a suitable replacement. Id. at 554.

Far from being an abuse of discretion, the district court adopted the

prudential approach that this Court’s jurisprudence is well known for: finding the

balance between making sure that regulations are not invalid or unconstitutional,

while simultaneously caring about things such as “[t]he unexpected nature of . . .

regulatory vacuum[s]” and the public’s well-being. Small Refiner, 705 F.2d at 545;

Nuclear Info. & Resource Serv. v. U.S. Nuclear Reg. Comm’n, 918 F.2d 189, 196–


12

97 (D.C. Cir. 1990) (applying Small Refiner’s logic to a case under the Atomic

Energy Act). Because the district court simply followed Small Refiner’s path of

exercising prudence to preserve both the status quo and the public interest, its order

extending the stay of vacatur for 88 days is not an abuse of discretion.

B. Rule 60(b)(6) Is The Only Appropriate Subsection For Relief Given The Extraordinary Circumstances Presented In This Case

In Salazar v. District of Columbia, this Court explained that parties may

only seek Rule 60(b)(6) (as opposed to any other subsection of that rule) relief in

cases of extreme inequity. 633 F.3d 1110, 1120–21 (D.C. Cir. 2011). Washtech

makes much of how the district court admitted that the equitable considerations

involved in a case analyzing a motion under Rule 60(b)(5) were “analogous,”

(App’t Br. at 11), but analogizing from other cases in equity does not mean that

relief here under Rule 60(b)(5) would have been more appropriate. This is because

the Government’s Motion for Limited Relief never claimed that “apply[ing the

district court’s judgment] prospectively was no longer equitable.” Fed. R. Civ. P.

60(b)(5). There was simply no need to make that motion because of the initial stay

the district court entered, and because DHS had already been drafting a rule for

notice and comment consistent with 5 U.S.C. § 553.2 Ultimately, Washtech’s

2 The rule is currently in the final stages of the regulatory process, and is


13

arguments fail here for the same reasons as before: Washtech fails to appreciate

that Rule 60(b)(6) is “an equitable catch-all provision,” In re Korean Air Lines,

156 F.R.D. at 23, and fails to appreciate how strongly the equities weigh in favor

of extending the district court’s initial stay of vacatur. Pointing to the other side of

the scale, Washtech embellishes DHS’s development of a new final rule—claiming

that the Department had “seven” or “nearly eight years” to make such a rule,

(App’t Br. at 12), and that DHS’s “self-inflicted injury” in this regard “cannot

constitute extraordinary circumstances.” (App’t Br. at 15.)

As to the first point concerning “nearly eight years,” there simply is no

doctrine or case law to punish a litigant for failing to anticipate a non-frivolous

argument’s rejection. Washtech attempts to point blame at DHS because the STEM

OPT rule was initially promulgated as an interim final rule in 2008. But DHS made

good-faith arguments to the district court on this matter, and the district court did

not abuse its discretion in holding that there was no “self-inflicted” wound in this

case that disqualified DHS from equitable relief. Instead, the “equitable clock”

started when the district court’s judgment and original stay went into effect—

under Office and Management and Budget review pursuant to Executive Order 12,866. See Office of Mgmt. & Budget, RegInfo.gov (Feb. 22, 2016), Pending EO 12866 Regulatory Review, http://www.reginfo.gov/public/do/eoDetails?rrid= 125948.


14

August 12, 2015. And as was explained by the district court, “there is no

suggestion in the record that DHS . . . dragged its feet in any way in issuing the

new rule. To the contrary, it is undisputed that DHS [took] an ‘all-hands-on-deck’

approach, in which multiple offices from throughout DHS and other agencies

helped develop and review the draft regulation on an expedited basis.” Wash.

Alliance, 2016 WL 308775, at *5 (internal quotation marks omitted). This “all-

hands-on-deck” approach was necessary to deal with the truly extraordinary

volume of comments DHS received from the public—what the district court

described as “an unexpected and unprecedented public response—50,500

comments, more than it received in response to its next four most-commented-on

DHS rules combined.” Id. at *3 (internal quotation marks omitted).

Washtech points to a couple of cases from very different contexts where

intervening changes in the facts or law were not by themselves enough to

constitute an extraordinary circumstance. (See App’t Br. at 16.) But again, this

argument ignores the severe harm that creation of a “temporary regulatory

vacuum” would have on the public. Combined with the fact that “there is no

suggestion in the record that DHS . . . dragged its feet in any way in issuing the

new [OPT] rule,” Wash. Alliance, 2016 WL 308775, at *5, as well as the

impossibility for the Department or the district court to have foreseen the


15

extremely high public interest in DHS’s new rule (as evidenced by the number of

comments on the new rule), the district court did not abuse its discretion by

granting DHS’s motion for limited relief in the form of a three-month extension of

the stay.

III. IF THE DISTRICT COURT WAS WITHOUT JURISDICTION, ITSRULING SHOULD BE TREATED AS AN INDICATIVE RULING

Assuming arguendo that this Court holds that the district court did not have

jurisdiction to grant the Department’s motion, this Court should remand the case to

the district court pursuant to Rule 62.1(c). Although the case law of “indicative

rulings” is still developing, the prior case law of those courts that were already

following Rule 62.1’s processes shows that most circuit courts attempted “[t]o

expedite” this process and remand to the district court if there was no abuse of

discretion with the indicative ruling. Boyko v. Anderson, 185 F. 3d 672, 676 (7th

Cir. 1999) (Posner, C.J.). As explained above, the district court’s order was not an

abuse of discretion, and treating its order as an “indicative ruling” for the purposes

of Rule 62.1 should “expedite matters,” id., and allow this Court to remand the

case back to the district court to enter its order and extend its prior stay of vacatur.


16

CONCLUSION

For the foregoing reasons, the district court had jurisdiction to extend its

prior order staying vacatur of the 2008 OPT STEM Extension rule, and the court

did not abuse its discretion in finding that there were “extraordinary

circumstances” to warrant relief under Rule 60(b)(6). Accordingly, Washtech’s

motion should be denied and the district court’s ruling should be affirmed.

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

LEON FRESCO Deputy Assistant Attorney General

WILLIAM C. PEACHEY Director

GLENN M. GIRDHARRY Assistant Director

By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 [email protected]

Dated: February 22, 2016 Attorneys for Defendants-Appellees


CERTIFICATE PURSUANT TO FED. R. APP. P. 32(A)(7)(C) AND D.C. CIRCUIT RULE 32(e)

Pursuant to Fed. R. App. P. 32 (a)(7)(C) and D.C. Circuit Rule 32(e), the

attached opening brief is proportionately spaced, has a typeface of 14 points or

more, and contains 3,437 words, not including those sections excluded from the

word count under applicable rules.

By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division


CERTIFICATE OF SERVICE

I hereby certify that on February 22, 2016, I electronically filed the

foregoing DEFENDANT-APPELLEE’S RESPONSE TO PLAINTIFF-

APPELLANT’S MOTION TO VACATE THE DISTRICT COURT’S ORDER

GRANTING RELIEF UNDER FED R. CIV. P. 60(b) with the Clerk of the Court

for the United States Court of Appeals for the District of Columbia Circuit by

using the appellate CM/ECF system.

I further certify that on February 22, 2016, I served copies of this filing by

first-class mail on all Plaintiffs’ attorneys of record at their respective addresses

listed on the docket in the district court in the district-court litigation.

By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division


No. 15-5239 IN THE UNITED STATES COURT OF APPEALS FOR …€¦ · No. 14-cv-529 The Hon. Ellen...

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