[00:00:03] Speaker 04: Case number 17-5110, Washington Alliance of Technology Workers Appellant versus United States Department of Homeland Security at L. Mr. Miano for the appellant, Mr. Stewart for the appellees. [00:00:30] Speaker 02: It's normal. [00:01:03] Speaker 02: All right, you may proceed. [00:01:08] Speaker 03: You may please the court. [00:01:09] Speaker 03: I'm John Miano. [00:01:10] Speaker 03: I represent the Washington Alliance of Technology Workers. [00:01:13] Speaker 03: And with me is Christopher Hayek, who's at the council table. [00:01:18] Speaker 03: Your Honor, the regulations at issue here are so outside the bounds of congressional authority that, quite literally, the agency would have to be a second Congress to promulgate them. [00:01:32] Speaker 03: If you look at the regulations, DHS here claims that alien employment may be authorized either by Congress through statute or through regulation. [00:01:44] Speaker 03: In other words, their power is equal to Congress's in that area. [00:01:48] Speaker 03: In addition, their regulations also assert that they have the ability to determine who is present in the United States. [00:02:00] Speaker 02: On the pleading, you got questions on standing, including injury and redress, and then the reopening doctrine. [00:02:06] Speaker 02: I mean, why don't you start with standing? [00:02:09] Speaker 02: Start with standing? [00:02:09] Speaker 03: Well, here we've pled several standing theories. [00:02:14] Speaker 03: The most common, of course, is competitive injury standing. [00:02:19] Speaker 02: All right. [00:02:20] Speaker 02: So assuming that is supported by the case law as a starting point, what is the redress when you're talking about [00:02:29] Speaker 02: It's a third-party-type standing case, a Lujan case, where you have to rely on the actions of someone else in order to achieve the result that you want. [00:02:37] Speaker 02: Merely killing the regulation doesn't get you redress. [00:02:42] Speaker 03: That is not correct, Your Honor. [00:02:45] Speaker 03: Or at least how we're framing the injury here. [00:02:49] Speaker 03: I do not believe that we're correct. [00:02:51] Speaker 03: That is a correct statement. [00:02:52] Speaker 03: I believe that's how DHS reframes our argument. [00:02:54] Speaker 02: No, no. [00:02:55] Speaker 02: I'm asking you based on case law on redress. [00:02:58] Speaker 02: You're relying on the you're relying on the eventuality if you can knock out the regulation that employers would hire. [00:03:07] Speaker 02: your folks as opposed to the people who you don't want in these jobs. [00:03:11] Speaker 02: Is that right? [00:03:12] Speaker 03: No, that's not correct, Your Honor. [00:03:13] Speaker 03: In the case law, the injury is the exposure to competition in the market. [00:03:17] Speaker 03: That if we succeed, these aliens are removed from the market to competition. [00:03:22] Speaker 03: The third party thing has been completely rejected by this circuit repeatedly. [00:03:28] Speaker 03: We can't reject the third party concern. [00:03:30] Speaker 03: It's a Supreme Court concern. [00:03:31] Speaker 03: It's Article III. [00:03:32] Speaker 02: Well, we're talking... Now, wait. [00:03:33] Speaker 02: Hear what I'm saying. [00:03:36] Speaker 02: The mere fact that there is a possibility, it's like the Lujan case. [00:03:41] Speaker 02: The mere fact that the agencies may or may not have followed the regulation of the principal agency was a concern, and the court didn't have to deal with it, but they said it's a serious concern. [00:03:54] Speaker 02: The question here is you have to be able to show that redress will follow. [00:04:00] Speaker 02: That is, that the employers [00:04:04] Speaker 02: will do, not just that you conceive of this as competition, because another way to look at the case is this isn't competition at all. [00:04:11] Speaker 02: These folks are merely folks that are hired if the employees are allowed to hire. [00:04:16] Speaker 02: But they have nothing to do with whether they will hire your people. [00:04:19] Speaker 02: That's the redress question I'm talking about. [00:04:21] Speaker 03: Let me go to the case law here, Your Honor. [00:04:24] Speaker 03: Starting point, the Louisiana Energy versus FERC, where this court said that it is repeatedly held that when an agency allows a competitor into another's market, that is an injury in fact. [00:04:40] Speaker 03: Move to the Mr. Miles Quibb versus Shlaylor case. [00:04:43] Speaker 02: You're assuming the answer to my question. [00:04:45] Speaker 02: Let me ask you, in those cases, as I read those cases, it was absolutely clear that they were competitors, meaning there were more people competing for the same thing. [00:04:58] Speaker 02: The question here is, is that true? [00:05:00] Speaker 02: What have you shown? [00:05:01] Speaker 02: What have you offered to show? [00:05:03] Speaker 02: that if you win and the regulation is gone and no permits can be given, your people will get jobs that otherwise would have gone to the interns. [00:05:12] Speaker 03: Your Honor, there's nothing to that because if you look, for example, at Mr. Miles Squibb versus Shalala, this court explicitly rejected our argument. [00:05:20] Speaker 03: The injury, in fact, is the exposure to competition. [00:05:25] Speaker 03: that the allowance of people into the market, as they said, in Bristol-Miles-Squibb and Shlaela case, that consumers always decide what to purchase in a marketplace. [00:05:42] Speaker 03: The injury is the exposure to the competition by allowing these people into the marketplace. [00:05:47] Speaker 03: And here they're explicitly in the market. [00:05:50] Speaker 03: The plaintiffs here, the identified plaintiffs, are two computer programmers and a network administrator representing a union that represents technology workers. [00:06:00] Speaker 03: Here we have a regulation that allows, specifically allows people in those occupations to join the market. [00:06:09] Speaker 03: And I want to point you to the National Credit, First National Bank versus National Credit Union case. [00:06:15] Speaker 03: where one competitor was allowed into the market, the banking market, through regulation they allowed one credit union into the national market, and this court held that that admission was an injury. [00:06:29] Speaker 03: And the Supreme Court, when it reviewed that, said that there was no doubt that there was an injury, in fact, because competitors were allowed into the market. [00:06:38] Speaker 03: So this court has repeatedly rejected the argument that the third party, that you have to have someone that there's a specific loss of jobs. [00:06:47] Speaker 03: And again, I would refer back to Bristol-Miles-Squibb and the Shlalo case. [00:06:55] Speaker 02: Okay, well, you're not really answering my question, but I assume that's your answer. [00:06:59] Speaker 02: A competitor assumes that you're going after the same thing, and if you're not going after the same thing, you're not competing. [00:07:05] Speaker 03: We're in the same market. [00:07:06] Speaker 02: I mean, if you add... That's the question, but I hear your answer, which is not an answer. [00:07:14] Speaker 03: That's the question. [00:07:15] Speaker 03: I would like to give you the answer. [00:07:17] Speaker 03: If I haven't answered sufficiently, the answer is that we are not alleging specific jobs are being lost and we are pointing out that this court has repeatedly stated that that is not necessary to show a competitive injury. [00:07:33] Speaker 02: No, but the Court has always assumed that what we were talking about was the same set of work, same sets of work, that both groups were going after. [00:07:44] Speaker 02: And that's the question here. [00:07:45] Speaker 02: Is it the same set of work? [00:07:47] Speaker 02: Yes, it is the same. [00:07:48] Speaker 02: In other words, if the aliens are coming in, are they really taking jobs that would have otherwise, whether you get them or not, would have otherwise, or is it something entirely different? [00:07:59] Speaker 02: Your Honor, they are. [00:08:00] Speaker 02: It's just the training program. [00:08:01] Speaker 03: Your Honor, they are in the same, exact same occupations. [00:08:05] Speaker 03: The DHS has a list of fields, they call their STEM field list, which includes computer programmers and system administrators and variants on what are computer programmers that in the industry there's several job titles such as software engineer, software developer, all of which are the same thing. [00:08:26] Speaker 03: And most of these workers that are coming in, foreign workers, are in these computer occupations. [00:08:33] Speaker 01: Your people are, pardon me, your supposed competitors are coming in with the entry level. [00:08:40] Speaker 03: That's, we don't know, Your Honor. [00:08:43] Speaker 03: We don't know that. [00:08:44] Speaker 03: Because you're also eligible, if you get a graduate degree, you can be all out there. [00:08:49] Speaker 03: And also you're assuming that our people don't want, won't take an entry-level child. [00:08:53] Speaker 03: One of the big problems is, in the industry, is that, is older workers getting jobs. [00:08:59] Speaker 03: And I said both of our guys are older ones. [00:09:01] Speaker 03: And in fact, Mr. Smith has recently been pushed out of the, has lost his job, has taken one outside the field and is desperately trying to get a job in the market. [00:09:15] Speaker 03: And he would clearly take an entry-level job to get back into the occupation. [00:09:20] Speaker 01: Did he lose his job to someone in this program? [00:09:22] Speaker 03: He did not lose a job. [00:09:23] Speaker 03: Well, we don't know. [00:09:24] Speaker 03: He was just laid off. [00:09:25] Speaker 03: So this is why, when you have formulated the competitive entry document, you never know who's going to buy one product or the other. [00:09:36] Speaker 03: Like in the Bristol-Montesquieu case, they were allowing a generic drug into the market. [00:09:44] Speaker 03: And the court noted there's no way to tell who the pharmacists are prescribed one drug or the other, but you could tell that they are in the market and are in competition. [00:09:56] Speaker 02: What do you think, I mean, it's crucial for your argument to be able to get to the statutory issue that the agency reopened in the rulemaking, reopened the conversation about [00:10:11] Speaker 02: the statutory basis for the rule. [00:10:13] Speaker 02: What are you relying on there? [00:10:14] Speaker 03: I think here all the public citizen factors are present. [00:10:19] Speaker 03: First of all, the question of whether an alien can work 42 months as they can on the current regulation is identical to the question of whether it's legal for them to work 29 months, which is legal. [00:10:33] Speaker 02: The district court the first time around said you clearly had not shown that the agency intended to reopen [00:10:41] Speaker 02: a discussion about the legality of the rule. [00:10:43] Speaker 02: The agency was really talking about that. [00:10:46] Speaker 02: That came up, it was mooted out. [00:10:48] Speaker 02: We didn't have to decide that question the first time around. [00:10:52] Speaker 02: It is now crucial to your argument here as to whether or not in this rulemaking, because otherwise you're out of time. [00:11:00] Speaker 02: And I'm not talking about the 1992. [00:11:01] Speaker 02: I understand the district court thought you were out of time. [00:11:05] Speaker 02: You lose because you couldn't reopen the 1992. [00:11:08] Speaker 02: That's I'm not framing it that way. [00:11:11] Speaker 02: I understand your argument. [00:11:13] Speaker 02: The question is, I looked at the federal register. [00:11:16] Speaker 02: What is it you think? [00:11:18] Speaker 02: that the agency said in the Federal Register to suggest to you that the whole question on statutory authority was open again? [00:11:27] Speaker 03: One, the agency accepted comments and addressed comments on whether it was lawful to allow aliens to work in the United States at all. [00:11:39] Speaker 03: That's one that they did. [00:11:41] Speaker 03: Two, another factor of reopening is the ability to comment. [00:11:46] Speaker 03: The two previous regulations dealing with this did not, were made without notice and comment. [00:11:52] Speaker 02: No, no, that's not the question. [00:11:54] Speaker 02: The reopening doctrine goes to the agency can have a rulemaking on a discrete portion of an existing rule that doesn't allow you to get [00:12:05] Speaker 02: to the initial inquiry as to whether or not they had authority to regulate in this area. [00:12:11] Speaker 02: All they've done here is extend the time. [00:12:13] Speaker 02: That's all. [00:12:14] Speaker 02: That's their argument. [00:12:15] Speaker 02: That's all we've done. [00:12:16] Speaker 02: We didn't reopen the regulation for discussion on a statutory basis. [00:12:20] Speaker 03: Well, one of the factors under public citizen is the ability to have, this regulation was the very first time the public had the opportunity to make comment on whether this was legal at all. [00:12:33] Speaker 03: Because the two previous times, they did it without notice and comment. [00:12:37] Speaker 03: So that is one of the public... On the 1992? [00:12:39] Speaker 03: The 1992 rule was done without notice and comment as well. [00:12:43] Speaker 03: This is kind of a problem in the agency. [00:12:47] Speaker 03: They did that without us coming. [00:12:49] Speaker 03: So under public citizen, this was the first time the public had an opportunity to comment whether it was legal or not. [00:12:54] Speaker 03: And that's one of the reopening factors. [00:12:56] Speaker 02: There was no notice in comment. [00:12:58] Speaker 02: No notice in comment, Your Honor. [00:12:59] Speaker 02: Initiating in 1992. [00:13:00] Speaker 02: None, Your Honor. [00:13:07] Speaker 03: Questions? [00:13:09] Speaker 03: Which issue would you like me to, are you specifically concerned, because you apparently were not concerned, did not like the track that I was going, are there issues? [00:13:17] Speaker 02: You know, I just had questions that I wanted you to address, not a threshold question. [00:13:20] Speaker 02: Okay, yes, those are questions. [00:13:22] Speaker 02: The other thing that the other side is going to argue, you may want to respond to it. [00:13:27] Speaker 02: is whether or not the pleading was sufficient and whether or not you would effectively concede it. [00:13:33] Speaker 02: Hello. [00:13:33] Speaker 03: Your Honor, as far as the sufficiency of the pleading, I think the pleadings speak to themselves. [00:13:39] Speaker 03: That we go on and it goes in the [00:13:42] Speaker 03: What were the objections? [00:13:44] Speaker 03: Objection raised, you know, for example, on the excess of authority. [00:13:49] Speaker 03: One sentence throw off which they say that there was only one, again, only one sentence in here. [00:13:58] Speaker 03: Well, in the excess of authority, I see that there are pages on pages describing the various statutory provisions, what they do, and then finally comes down and says after one, two, three, four, five, six, seven, eight, [00:14:11] Speaker 03: eight pages describes and says that the regulations in excess of what those statutes do. [00:14:18] Speaker 03: For claiming excess authority, all you should have to be able to do is say the rule is in excess of authority. [00:14:24] Speaker 02: No, I mean, take a particularized form. [00:14:27] Speaker 02: Their argument as a district court period was under the rules [00:14:31] Speaker 02: When it was time for you to respond to their motion, you didn't respond. [00:14:35] Speaker 03: And you conceded. [00:14:37] Speaker 03: And what it says, and our response in the motion was that these things were correctly pleaded, that we stated a fact that these cause of actions were authorized under the statute and that we had pleaded them sufficiently. [00:14:53] Speaker 03: It was responded to. [00:14:54] Speaker 03: Whether they don't like the response or not, I, you know, I can't say, and that's up to you, but the district court said that there's, that we didn't say anything when clearly we did say something. [00:15:04] Speaker 03: District court said we didn't say anything about the injury from the 1992 rule. [00:15:07] Speaker 03: And repeatedly we said, point to places where you said stuff about 1992. [00:15:13] Speaker 03: So I have to say we've hit a very frustrating point here in regard to the procedural issues. [00:15:23] Speaker 03: I'm looking right here. [00:15:24] Speaker 03: We go one, two, three, four pages of pleadings on that count. [00:15:34] Speaker 03: And part of the problem is when we got there in the motion, I mean, a lot of things, I didn't even understand what they were talking about. [00:15:42] Speaker 03: One of them they said was, we didn't plead that DHS had to publish the stem list in the Federal Register. [00:15:54] Speaker 03: I scratched my head, what in the world were they even talking about here? [00:15:58] Speaker 03: I didn't have any idea where they were doing that until they did their response brief here when they were saying that we were saying that they were required to publish in the Federal Register. [00:16:08] Speaker 03: In fact, we didn't allege anything like that. [00:16:10] Speaker 03: We allege that they violated the incorporation by reference provisions, and they could have published in the Federal Register to get around that, or they could have followed the requirements either way. [00:16:26] Speaker 03: They didn't have to publish it in the Federal Register. [00:16:29] Speaker 03: So a lot of these things we read, we didn't even know what they were talking about. [00:16:33] Speaker 03: Okay. [00:16:34] Speaker 03: I'll give you time and rebuttal. [00:16:36] Speaker 02: I will say that. [00:16:38] Speaker 02: Unless you want your last 26 months in Gerardi. [00:16:41] Speaker 03: Well, I was pointing a plan out here, the importance here, that we're basically here taking a shift in immigration policy, taking it out of the hands of Congress, and putting it in the hands of the agency. [00:16:54] Speaker 03: And the rulemaking here ought to be particularly troubling. [00:16:58] Speaker 03: that the regulations here were done for the specific purpose of circumventing the quotas on H-1B visas, and the regulations were done in secret with no one even knowing that these regulations were being considered at the time, and they've been allowed to stand by the courts. [00:17:17] Speaker 03: Thank you, Your Honor. [00:17:30] Speaker 00: May it please the court, I'm Scott Stewart on behalf of the federal government. [00:17:34] Speaker 00: In this case, the district court dismissed Washtec's complaint on threshold rule 12 grounds. [00:17:40] Speaker 00: The court's dismissal and judgment were correct, and this court should affirm. [00:17:46] Speaker 00: I think I'll go, Your Honor, right to [00:17:50] Speaker 00: what you started with Judge Edwards about the competitor standing issue, regressibility. [00:17:55] Speaker 02: Well, let's go to the pleading thing first. [00:17:57] Speaker 02: Yes, Your Honor. [00:17:57] Speaker 02: Are there any serious concerns about that, respectfully? [00:18:01] Speaker 02: I don't know what more they were supposed to do. [00:18:05] Speaker 02: I don't know how, under a local rule, anyone could say they conceded anything. [00:18:10] Speaker 02: They pled a statutory claim, and [00:18:14] Speaker 02: You somewhat disingenuously cite a sentence out of context from the complaint to suggest they haven't said anything. [00:18:22] Speaker 02: And what they said was, we think the statute is unlawful because it allows [00:18:28] Speaker 02: Folks come in on permit, the statute says it's not appropriate because they're students. [00:18:36] Speaker 02: If you look at the complaint all the way down, not the one sentence you cite, they've cited a clear legal claim and cited facts that are undisputed. [00:18:45] Speaker 02: That is, the folks who come in on permit are graduates, they're not students, and they're making an argument that this facially violates the statute. [00:18:52] Speaker 02: It's clear. [00:18:53] Speaker 02: What more are you supposed to say in a complaint? [00:18:55] Speaker 00: Sure, Your Honor, I respectfully disagree that they adequately plead, and let me just sort of color why. [00:19:00] Speaker 00: I think the, at least on appeal, the plaintiffs have added more bone to the... No, no, I'm looking at the complaint. [00:19:08] Speaker 00: Sure, Your Honor. [00:19:09] Speaker 00: So I think the central problem here is that in addition to paragraph 63, the Washtec cites kind of a raft of descriptions of the various programs in earlier paragraphs of the complaint. [00:19:21] Speaker 00: They're all correct. [00:19:22] Speaker 02: that folks who get permits under these programs are graduates. [00:19:27] Speaker 02: They're not students, and they're saying that's inconsistent with the statute. [00:19:31] Speaker 02: No one disputes that. [00:19:31] Speaker 02: The government's not disputing that. [00:19:33] Speaker 02: That's what's happening in the program. [00:19:35] Speaker 02: There aren't any more facts to plead. [00:19:37] Speaker 02: And there's this weird charade that goes on below that they haven't pled facts to support. [00:19:44] Speaker 02: What more do you have to plead? [00:19:46] Speaker 00: Just a little bit of color about what it is. [00:19:49] Speaker 02: Why? [00:19:49] Speaker 02: They're saying everyone understands these are not students who get the benefit of these permits. [00:19:55] Speaker 02: We read the statute to say that's impermissible. [00:19:59] Speaker 02: That's our claim. [00:20:01] Speaker 02: Now, why do they have to say anything more than that? [00:20:03] Speaker 02: At the pleading stage? [00:20:05] Speaker 00: Well, Your Honor, I think the district court had trouble, you know, understanding... I didn't have any trouble. [00:20:10] Speaker 00: Well, I think, you know, we put this into issue when we moved to dismiss, Your Honor, and... You know, it's really... Here's the problem for me. [00:20:17] Speaker 02: It's really unfair. [00:20:19] Speaker 02: It's just... It's disingenuous. [00:20:21] Speaker 02: The complaint is clear. [00:20:23] Speaker 02: I'm stating a statutory claim. [00:20:25] Speaker 02: There are other issues in this case. [00:20:27] Speaker 02: I'm stating a statutory claim. [00:20:28] Speaker 02: The statute appears to say [00:20:32] Speaker 02: that it's limited to students. [00:20:34] Speaker 02: This program clearly goes beyond students. [00:20:39] Speaker 02: It gives a benefit to folks who are not students. [00:20:42] Speaker 02: We think that is unlawful. [00:20:44] Speaker 02: And the fact about what the program is, the facts are uncontested. [00:20:48] Speaker 02: And everyone knows that. [00:20:49] Speaker 02: And so we're now in court. [00:20:51] Speaker 02: Let's get to it. [00:20:53] Speaker 02: And then you come in with a motion that they've conceded because they don't respond further. [00:20:58] Speaker 02: And they reference back to their complaint. [00:21:01] Speaker 02: What more are they supposed to say? [00:21:03] Speaker 00: Well, Your Honor, I do think that the district court filings and pleadings here do show a difficulty of notice on the part of the plaintiff. [00:21:13] Speaker 02: There's no difficulty in notice. [00:21:15] Speaker 02: Answer my question. [00:21:16] Speaker 02: What more are they supposed to show? [00:21:17] Speaker 00: Just say what it is, why these provisions violate. [00:21:21] Speaker 02: Your Honor, it's because the statute refers to students. [00:21:25] Speaker 02: And these are not students who are getting these permits. [00:21:29] Speaker 02: And that's not contested. [00:21:30] Speaker 02: That's not the answer to the legal question, but it's sure enough to get you past the motion to dismiss for failure to state or for failure to lay a claim on. [00:21:41] Speaker 00: I don't think so in the context here, Your Honor. [00:21:43] Speaker 00: I don't think that's quite what they say in paragraph 63. [00:21:45] Speaker 00: They don't mention the word students. [00:21:48] Speaker 00: They mention completion of a course of study. [00:21:52] Speaker 02: You can't be serious. [00:21:54] Speaker 02: Your Honor, I'm not really on a motion to dismiss [00:21:58] Speaker 00: I don't think that's too much to ask here and that, you know, it's not that we're not asking for a huge burden for wash tech to meet just, you know, some notice, you know, we gave them an additional opportunity or they have an additional opportunity to shore up anything they wanted to shore up when they oppose the motion to dismiss. [00:22:16] Speaker 00: Their responses on this and other counts were extremely short. [00:22:20] Speaker 02: I mean, the response, frankly, on counts two, three, and four was... The challenge to the policy of allowing aliens to work on student visas after completion of their course of study, that's not clear. [00:22:34] Speaker 02: Your Honor, I still don't... And it's undisputed that that's exactly what the program does. [00:22:39] Speaker 02: And then they're saying that's inconsistent with the statute and they cite the statutory provisions and then they keep going. [00:22:45] Speaker 02: The policy of allowing aliens to remain in the United States at the completion of their course of study to work or to be unemployed is in excess of DHS's authority to admit. [00:22:56] Speaker 02: Why don't you just say, well, maybe we're wrong on that and get into your other, it's just, it's really kind of offensive, quite frankly. [00:23:02] Speaker 02: And then to say they conceded the point was kind of the height of chutzpah. [00:23:08] Speaker 02: Well, the district court... They didn't concede anything. [00:23:10] Speaker 00: Your Honor, it's pretty well... I mean, this court has been pretty strong in giving the district courts the discretion to determine whether a concession has been made by a failure to respond. [00:23:21] Speaker 00: And all we're arguing is that, you know, the district court reasonably exercised that discretion here. [00:23:24] Speaker 00: Don't we review this de novo? [00:23:27] Speaker 00: Concessions, no, Your Honor. [00:23:28] Speaker 02: Those of you... You don't review the complaint of the legitimacy of the complaint de novo? [00:23:33] Speaker 02: Whether or not it can survive a motion to dismiss? [00:23:36] Speaker 00: I'm not contesting that portion, Your Honor. [00:23:38] Speaker 02: So if I think they've pled enough, isn't that it? [00:23:41] Speaker 00: I think you'd still have to consider the district court's exercise of discretion with respect to... And you can abuse your discretion. [00:23:51] Speaker 00: Of course, discretion can be abused, Your Honor. [00:23:54] Speaker 00: It can be. [00:23:55] Speaker 02: But I still think... I mean, there may not be an answer to this question. [00:23:58] Speaker 02: I still don't know what more you would have expected them to say. [00:24:01] Speaker 02: Why don't you go on to your next argument? [00:24:03] Speaker 02: And I read your briefs carefully, and they don't answer the question. [00:24:07] Speaker 02: Because I don't think you know what more you'd expect them to say either. [00:24:11] Speaker 00: I don't think it would be much more, Your Honor, but I do understand Your Honor's position. [00:24:14] Speaker 00: I think that we maintain that the district court correctly ruled on this issue on alternative grounds, and we would ask the court to sustain that finding. [00:24:23] Speaker 00: If I can get to Your Honor's previous point about just redressability, I do think redressability here is a key issue in these previous competitors. [00:24:31] Speaker 00: This goes after whether the competitor, just the competitor standing issue. [00:24:37] Speaker 00: We don't, Your Honor had raised the question about whether these, the workers identified in the complaint would accept entry-level jobs. [00:24:44] Speaker 00: And that's really, as my friend on the other side pointed out, or conceded, we don't know whether they would. [00:24:50] Speaker 00: And then the problem there, it is a failure of pleading on this issue. [00:24:54] Speaker 00: We don't know what they would accept. [00:24:55] Speaker 00: The issue with the OPT program is that these are dealing with entry-level folks, people who [00:25:02] Speaker 00: You know have between 12 and 36 months of experience probably on the low end of that given that they're on the low end of you know The range is given when they'd be applying for and taking jobs. [00:25:13] Speaker 00: Whereas the three folks who watch tech has identified on which they previously submitted affidavits, you know [00:25:20] Speaker 00: have many more years of experience. [00:25:22] Speaker 00: You know, Mr. Blatt, for example, has three degrees. [00:25:26] Speaker 00: He's been applying to jobs, you know, for at least since 2010. [00:25:31] Speaker 00: Others, you know, another has, Randy Sawad has two degrees, has been applying to jobs, you know, for years ago. [00:25:38] Speaker 00: And I think, again, the problem here on competitor standing is that we just don't know [00:25:43] Speaker 00: whether these folks are competitors in the relevant markets. [00:25:47] Speaker 02: What's your best case to support the line of reasoning that you're now pursuing? [00:25:55] Speaker 02: That is, you have to have an affidavit to show there's a real competitive arrangement here. [00:26:01] Speaker 02: That is, that the plaintiffs and those to whom they're pointing really are in competition. [00:26:07] Speaker 02: What's your best case? [00:26:09] Speaker 00: Your Honor, on the affidavit point, I'm not putting too much emphasis on that. [00:26:13] Speaker 00: I think what I would emphasize as far as kind of best case on this would be just Mendoza and the emphasis on there on being direct and current competitors in the relevant market isn't sort of a generalized increase in competition in the abstract that can confer competitor standing, but it's something [00:26:34] Speaker 00: where the named members or the identified members, there needs to be some sort of pleading to show that they are really in competition in a plausible way. [00:26:43] Speaker 01: Do they have to show that one of them would get a specific job? [00:26:48] Speaker 01: Have an employer say, if I couldn't have hired this alien student, I would have hired this man? [00:26:54] Speaker 00: I wouldn't go that far, Your Honor. [00:26:55] Speaker 00: I mean, I think, you know, this court has, you know, as counsel mentions, mentioned exposure to competition. [00:27:00] Speaker 00: But the thing is, is that that sort of short quote doesn't capture is the direct and current competitor point. [00:27:08] Speaker 00: And it's sort of like [00:27:09] Speaker 00: You know, presumably somebody who's, you know, one year out of law school is not a competitor of, you know, somebody who's 15 years out of law school, for example. [00:27:17] Speaker 00: Yes, they're in the legal market kind of writ large, but they're not really, you know, unless we know something more, have some kind of plausible reason to believe, they're not really competitors. [00:27:30] Speaker 00: you know, increased effort to, or like enabling one to gain, you know, an entry-level job doesn't really mean that the 15-year veteran out of law school is a competitor of that person. [00:27:40] Speaker 02: What do they have to show? [00:27:42] Speaker 00: I think we would need some sort of pleadings to indicate, some sort of factual allegations, Your Honor, just to indicate that [00:27:55] Speaker 00: that some member of Washtec is competing for entry level, you know, one year, two year out of... So you're saying an affidavit. [00:28:04] Speaker 00: Well, I mean, not necessarily an affidavit, Your Honor. [00:28:06] Speaker 00: It could be some allegations that just bear out that part. [00:28:13] Speaker 00: But I don't think we really have that much here, especially, and this goes to sort of another point about just sort of a causation problem. [00:28:20] Speaker 00: What we have here are allegations that predate the new rule. [00:28:23] Speaker 00: And they're based on the complaint was filed very days after the new rule issued. [00:28:30] Speaker 00: So we have kind of a stale. [00:28:34] Speaker 00: record, so to speak, limited record, but a record, as to whether these folks are actually directing current competitors, as Mendoza emphasizes, is important, but not necessarily. [00:28:43] Speaker 02: Mendoza's the best you have. [00:28:45] Speaker 00: I think it's the most on point, Your Honor. [00:28:47] Speaker 00: I mean, I think, you know, these cases tend to be, you know, as Your Honors know, you know, fact-intensive, and, you know, we've cited Arpaio and other, you know, [00:28:58] Speaker 00: not kind of on all fours factually, but just points that emphasize that speculation of redressability is a problem and can stop a standing claim in its tracks. [00:29:12] Speaker 00: On top of competitor standing, Your Honor, I think on the [00:29:20] Speaker 00: On the 1992 OPT rule, Judge Edwards, you had mentioned the reopening issue. [00:29:26] Speaker 00: The response I give there, and my friend emphasized public citizen, public citizen at page 150 emphasized this court's explanation in American Iron and Steel Institute that [00:29:39] Speaker 00: When an agency opens a rulemaking for a particular purpose, for a limited focus purpose, a commenter can't just comment on something that's not an issue, go the agency into a response, and then claim that the issue's been reopened. [00:29:55] Speaker 02: Yeah, but the problem, don't you have a unique problem here that there was no notice and comment in the first place? [00:30:02] Speaker 00: I don't think so, Your Honor. [00:30:03] Speaker 00: And I think the other, [00:30:05] Speaker 00: The other point I'd emphasize here is that this Court has said... Is there a case that's dealt with that? [00:30:11] Speaker 02: There was no notice... The public has never had an opportunity to address the rulemaking. [00:30:16] Speaker 02: 1992 was on a forecause we're going to just implement. [00:30:20] Speaker 02: The public wasn't involved. [00:30:23] Speaker 02: So you've never had notice in common on statutory authority. [00:30:27] Speaker 02: So it's not really the typical reopening case. [00:30:30] Speaker 00: It may not be the typical case, Your Honor, but I think that this Court has also said that, you know, when you have a rule that doesn't squarely reopen an issue, but you want to challenge sort of the predecessor rule, the appropriate effort is to petition the agency to do that, ask them to revisit it if they deny that effort, then... That assumes there's no reopening. [00:30:51] Speaker 00: Correct, Your Honor. [00:30:52] Speaker 00: But I'd say that's a mechanism here to [00:30:57] Speaker 02: But that assumes there's no reopening. [00:30:59] Speaker 02: We don't have a decision on that. [00:31:00] Speaker 02: The district court didn't decide that question as to whether there was a reopening, including should we treat it differently because there was never notice and comment in the first place. [00:31:09] Speaker 00: Right. [00:31:11] Speaker 00: I believe, Your Honor, the 1992 rule was issued with requests for comments. [00:31:17] Speaker 00: I'm not sure, Mr. Riano hasn't shown that the issue was or wasn't addressed at that time. [00:31:22] Speaker 00: It hasn't said whether there was and wasn't an opportunity to challenge things then, to raise an authority argument, that sort of an issue. [00:31:30] Speaker 00: So on reopening, I emphasize that point as well as just the, you know, looking at the rule, the agency was pretty clear here. [00:31:40] Speaker 00: They continued to refer to the extension, not to the general opt program. [00:31:43] Speaker 00: They contrasted the extension that they were OPT program. [00:31:46] Speaker 00: They contrasted the extension with the general OPT program. [00:31:54] Speaker 00: If there are no further questions, Your Honor. [00:31:58] Speaker 01: If you're supposed to come back a little bit to the discussion of the adequacy of the pleadings and the complaint on which the petitioner chose to stand, the plaintiff chose to stand for the most part. [00:32:12] Speaker 01: If you're right about all that, if the district court is correct about the inadequacy of that lack of response, if you will, why should this dismissal have been with prejudice? [00:32:27] Speaker 00: Your honor, I'm not, I'd have to go re-check on that, but I'm not sure whether the petitioner sought to, you know, file another complaint to, you know, amend his pleadings to... No, I don't think so. [00:32:40] Speaker 00: Re-check. [00:32:40] Speaker 00: But I'd have to re-check. [00:32:42] Speaker 01: I don't know. [00:32:44] Speaker 01: I don't think they did. [00:32:46] Speaker 00: That they didn't want to? [00:32:48] Speaker 01: They didn't seek to amend the complaint, if that's what you're asking. [00:32:53] Speaker 01: They were dismissed with prejudice and appealed that dismissal. [00:32:59] Speaker 01: Why should it have been with prejudice? [00:33:07] Speaker 00: Your Honor, I'd have to go and re-consult the district court record. [00:33:11] Speaker 00: I haven't thought the issue all the way through. [00:33:13] Speaker 00: I would say to the extent that [00:33:17] Speaker 00: The plaintiff has chosen to stand on the cases pleaded and sort of rolled the dice in the Court of Appeals. [00:33:22] Speaker 00: I think that it's appropriate to hold the plaintiff to that choice and to just decide based on the complaint that Waschek chose to rest on. [00:33:30] Speaker 01: Well, we have the precedents that would lean in the direction of requiring, and in this case, remanding for dismissal without prejudice. [00:33:42] Speaker 01: If you're saying, well, the plaintiff hasn't raised that, isn't seeking that, but rather wants to go right to the merits of the dismissal, it's precisely to protect parties from errors by lawyers and from oversights and so on. [00:34:07] Speaker 01: that the procedural protections of dismissal without prejudice are there. [00:34:13] Speaker 01: That's why they're there. [00:34:15] Speaker 01: That's why we have them surrounding Rule 41, surrounding Rule 55. [00:34:20] Speaker 01: So I'm not sure why we shouldn't, I mean, if our case law is fairly clear that this should have been without prejudice, should we not follow that? [00:34:30] Speaker 00: Your Honor, because the Washtec hasn't pressed it here, hasn't erased it, my instinct is that the court should hold Washtec to that. [00:34:40] Speaker 00: And in this instance, this is not the first case in which Washtec has taken this approach. [00:34:46] Speaker 00: It's familiar, and yet it still has not sort of argued against the prejudice point, so far as I can recall, Your Honor. [00:34:53] Speaker 00: And I can't commit more firmly than that, but that would be my answer. [00:34:58] Speaker 02: But we're reviewing at de novo the adequacy of the pleading. [00:35:03] Speaker 02: It seemed to me the district court was relying not so much on the inadequacy of the pleading, but the failure to respond to your motion. [00:35:13] Speaker 00: I think it was a combination, Your Honor. [00:35:15] Speaker 00: I mean, I understand that Your Honor raised other points about paragraph 63 and other matters. [00:35:24] Speaker 00: But I think it was in part just [00:35:28] Speaker 00: In orderly, the district court exercising its discretion to manage its document in an orderly way, make sure the arguments were adequately represented given the stage of the proceedings and then holding the respective sides to the need to adequately address this. [00:35:41] Speaker 02: But if the district court didn't find an inadequacy of the pleading, and that's all your motion was saying, you weren't asserting any facts that they had to refute. [00:35:52] Speaker 02: What does that leave you? [00:35:55] Speaker 02: This court can just say, well, they should have responded. [00:35:58] Speaker 02: Even though there was nothing to say in a response, their failure to respond is justification for dismissal. [00:36:03] Speaker 02: That doesn't make sense to me. [00:36:05] Speaker 00: I take your point, Your Honor. [00:36:06] Speaker 00: I would circle back, and I understand that, Your Honor. [00:36:11] Speaker 02: We see it differently, yes. [00:36:13] Speaker 00: But what I would emphasize in response is just, you know, the district court saw the complaint as inadequate, saw the... Where did it say that? [00:36:20] Speaker 02: Because if the district court saw the complaint as inadequate, that's all you have to say as a district court, it's inadequate. [00:36:27] Speaker 02: District court was resting on the local rule that their failure to respond to your motion [00:36:34] Speaker 02: means that they can see, I don't know what they conceded. [00:36:37] Speaker 02: They failure to respond to your motion means that they conceded the point. [00:36:41] Speaker 02: I don't know what point that is. [00:36:43] Speaker 02: It's going around in circles. [00:36:45] Speaker 02: Is it the point that you think their complaint was inadequate? [00:36:50] Speaker 02: Is that what they conceded? [00:36:53] Speaker 02: I see the district court is saying the problem here is they didn't respond to your motion. [00:36:58] Speaker 02: I looked at what you said. [00:37:00] Speaker 02: All you said was there. [00:37:03] Speaker 02: complaint is conclusory. [00:37:05] Speaker 02: And so are they conceding that? [00:37:06] Speaker 02: Is that what you think the district court meant to say? [00:37:09] Speaker 02: They've conceded that their complaint is conclusory when they responded by saying we refer back to the complaint? [00:37:16] Speaker 00: I think that's right, Your Honor, that they concede their complainers' conclusion. [00:37:19] Speaker 00: I understand that it seems counterintuitive, but, I mean, so do a lot of non-responses in the district court on a variety of issues, on dispositive motions. [00:37:28] Speaker 00: And nonetheless, this court has enforced the distribution. [00:37:31] Speaker 02: See, but it's not like summary judgment where you're saying something. [00:37:34] Speaker 02: Your motion wasn't saying anything. [00:37:36] Speaker 02: Your motion was just saying, well, we're going to file a piece of paper. [00:37:39] Speaker 02: Hopefully, they won't say anything more than the complaint. [00:37:42] Speaker 02: and then who went under the local rules when the real issue is whether the complaint is adequate. [00:37:47] Speaker 02: When you look at the complaint, it's absolutely adequate. [00:37:51] Speaker 00: And I think that's where we still, we alternatively, you know, in addition to the enforcement of the concession. [00:37:57] Speaker 02: So do you agree if I think the complaint is completely, is absolutely inadequate? [00:38:02] Speaker 02: Just hear what I'm saying. [00:38:03] Speaker 02: I think it's adequate. [00:38:06] Speaker 02: And [00:38:08] Speaker 02: There isn't anything more as a consequence that they could say. [00:38:11] Speaker 02: It is adequate in stating the legal proposition, the facts that they think are relevant, and they've done it. [00:38:17] Speaker 02: And then they respond to you by saying, it's already in the complaint. [00:38:21] Speaker 02: If they've done that, shouldn't they win on this point? [00:38:26] Speaker 02: Just accepting my assumption, and I think what's in the complaint is good. [00:38:30] Speaker 02: Their failure to say more, that should damn them. [00:38:35] Speaker 02: If I'm right that the complaint is adequate, [00:38:39] Speaker 02: Should they lose on the local rule because they didn't say something more to your motion? [00:38:46] Speaker 00: You know, I think the problem here is that the response was very, very generic and terse and is kind of a... Mine would be too if I already thought I did what you said I didn't do. [00:38:56] Speaker 02: There needn't have been any response. [00:38:58] Speaker 02: Right. [00:38:58] Speaker 02: They could stand on their pleading. [00:39:01] Speaker 02: That's essentially what they did. [00:39:02] Speaker 02: We stand on our pleading. [00:39:03] Speaker 02: We already said it. [00:39:04] Speaker 02: Your motion is silly. [00:39:06] Speaker 02: We already said it. [00:39:07] Speaker 02: There's nothing more to say. [00:39:09] Speaker 01: Well, your concern is they didn't say we already said it. [00:39:11] Speaker 01: Yep. [00:39:13] Speaker 02: I think they actually did that. [00:39:15] Speaker 02: I think they referred back to the complaint, if I remember correctly. [00:39:19] Speaker 00: Well, on this point, Your Honor, I would just refer to the point to pages 43 to 44 of their response on counts 2, 3, and 4. [00:39:26] Speaker 00: They're responding very generically to a lot of counts there. [00:39:30] Speaker 00: And I think the district court was within its discretion to say, look, that's not an adequate response. [00:39:34] Speaker 00: I do take Your Honor's point. [00:39:36] Speaker 01: That even if the complaint was adequate, the court could say, well, the response is not adequate. [00:39:41] Speaker 02: That therefore makes no sense. [00:39:42] Speaker 02: If the complaint is adequate and you say, but the response to our motion is not adequate, when your motion is about the adequacy of the complaint. [00:39:51] Speaker 00: I do take your point, Your Honor, but I would stand by our position if the complaint wasn't adequate. [00:39:55] Speaker 02: It's kind of like who's on first base. [00:39:56] Speaker 02: Is that the one? [00:39:59] Speaker 02: Thank you, Your Honor. [00:40:00] Speaker 02: All right. [00:40:00] Speaker 02: Thank you. [00:40:01] Speaker 02: Any time left? [00:40:03] Speaker 02: I'll give you two minutes. [00:40:08] Speaker 03: A couple points, Your Honor. [00:40:09] Speaker 03: First of all, we have the assumption that these are entry-level workers, and that's not the case here, that people can go to school, they can get graduate degrees, they're eligible for this, PhD people are eligible for this program, people are eligible for a second time. [00:40:25] Speaker 03: So there's nothing in here that says that they have to be, that these are all entry-level workers. [00:40:31] Speaker 03: That's just some assumption they've thrown out without facts. [00:40:33] Speaker 03: In the case of Mendoza, the people weren't even in the industry. [00:40:37] Speaker 03: They had been driven out of the industry, [00:40:38] Speaker 03: and they were trying to get back in and they were held to be directing current competitors because they wanted to be in the market. [00:40:47] Speaker 03: I need to correct an error that I was citing plenty of cases that cited the proposition that entry into the market is the injury. [00:40:58] Speaker 03: The cases are Bristol-Meyer-Squibb versus Shalala and Honeywell versus EPA. [00:41:04] Speaker 03: I also point out we have multiple injuries that we've alleged here. [00:41:08] Speaker 03: We only got to one in our time to, in our time to speak here. [00:41:19] Speaker 03: I think I have pretty much something, unless you have any other questions for me, Your Honor. [00:41:22] Speaker 02: Does Spokeo, the Supreme Court's decision in Spokeo add something that's significant here where they say [00:41:28] Speaker 02: Particularized injury is not enough. [00:41:30] Speaker 02: It's got to be concrete. [00:41:32] Speaker 02: Does that change how we should analyze some of the competitive standing cases? [00:41:36] Speaker 02: Not at all, Your Honor. [00:41:37] Speaker 02: Why? [00:41:38] Speaker 02: Don't say that so comfortably. [00:41:39] Speaker 02: Did they say it shouldn't? [00:41:41] Speaker 02: It's your surmise. [00:41:43] Speaker 03: Because we've repeatedly held that allowing competition is a concrete injury, and even Supreme Court has. [00:41:52] Speaker 03: I refer back to National Credit Union versus National Bank. [00:41:56] Speaker 03: where the allowance of a single competitor into the market was without a doubt injured. [00:42:02] Speaker 02: That was post-Bokyo? [00:42:05] Speaker 03: Post-Bokyo? [00:42:06] Speaker 03: I'm not sure of the date. [00:42:07] Speaker 01: I think it was post-Luhan, though. [00:42:10] Speaker 03: Okay, that was a post-Luhan. [00:42:12] Speaker 03: It definitely was a post-Luhan case. [00:42:13] Speaker 01: And concreteness was already undeclared. [00:42:18] Speaker 03: Well, thank you, Your Honor. [00:42:19] Speaker 02: All right, the case is submitted. [00:42:20] Speaker 02: Thank you both.