Good News / Bad News on OPT

By John Miano, May 9, 2016

The lawsuit challenging the regulations designed to transform student visas into a guestworker program has taken a bizarre twist. I and the rest of the Immigration Reform Law Institute team were in the United States Court of Appeals for the District of Columbia last Wednesday for oral arguments on the Optional Practical Training Program.

This is a good news/bad news story. I will start with the bad news. Unfortunately, this takes a lengthy setup.

Last August, the District of Columbia District Court found that the 2008 regulations expanding OPT had been made unlawfully without public notice and comment. This is a serious remedy that normally requires vacating the rule.

If a court finds a defect in an agency regulation, it normally either (1) vacates the rule (i.e., throws it out); or (2) remands it without vacatur back to the agency. Under the latter, the court spells out what is wrong with the regulation, sets a schedule for correcting the regulations, and arranges to have subsequent review of any remedial action that that agency takes. If there was a minor defect in rulemaking, the courts do this.

Because failure to give notice and comment is a serious violation, remand without vacatur is rarely done. Instead, the district court took what it described as a middle approach. It said it would stay vacatur, but delay the stay. This has only been done a few times before. The district court stated in its opinion that during the stay "DHS can submit the 2008 Rule for proper notice and comment." And then the order states the "case is remanded to DHS for further proceedings consistent with the Court's Memorandum Opinion."

Case closed.

The problem that the term "remand" in the order creates is that it presumes DHS will take corrective action. If the original order were appealed there could be a second appeal of the review of the remanded action. Because there could be two appeals over the same thing, appeals courts treat an opinion remanding as non-final and thus lacking jurisdiction to hear an appeal.

The D.C. Circuit raised the issue that it might not have jurisdiction over the case because the opinion from D.C. District Court is not a final order.

In the two district court cases cited as precedent for this action, the courts did not use the term "remand" to describe what they were doing. But here, the district court did.

If the district court's order was not final, then what makes it final? It has no provisions for additional review. The order said DHS can submit the 2008 Rule to notice and comment. It did not say DHS must submit the rule. In fact, DHS has chosen not to submit the 2008 Rule for notice and comment.

A remand normally requires the agency to do something. If this were a remand, the agency was not required to do anything on remand.

I had my worst oral argument day ever because I cannot explain what to make of all of this. Fortunately, the court appeared to appreciate my predicament and was especially kind to me. I thank them.

When I pointed out that the district court had marked the case as being closed prior to our appeal, there was great surprise on the bench. The surprise was so great that, if I were wrong, I would have had to write and file a mea culpa letter to the D.C. Circuit. The first thing we did after leaving the court was to go back to the office and confirm that, yes, the D.C. District Court marked the case as closed on August 12, 2015.

So we are in the position that no court wants to take jurisdiction over the case.

What happens next?

I have no idea — unless, of course, the D.C. Circuit decides it has jurisdiction. That's the easy condition. If the D.C. Circuit decides it does not have jurisdiction, then we are in procedural nowhere land with both courts saying they do not have the case. What would happen next depends upon what is in the D.C. Circuit's opinion. If the D.C. District order is not a final order, there is nothing in the opinion or order setting out how a final order would ever flow from it. If you are confused, imagine being before the D.C. Circuit and trying to answer questions on all this.

That was the bad news.

The good news is the D.C. Circuit was not buying the argument that aliens working after graduation are students.

If the D.C. Circuit ever does assume jurisdiction, the outcome looks pretty certain.