The Programmers Guild v. Napolitano - Opposition

No. 09-590

In the Supreme Court of the United States

THE PROGRAMMERS GUILD, ET AL., PETITIONERS

v.

JANET NAPOLITANO, SECRETARY OF HOMELAND SECURITY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
DAVID J. KLINE
VICTOR M. LAWRENCE
SAMUEL P. GO
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

QUESTION PRESENTED

Nonimmigrant aliens admissible to the United States include an alien who "seeks to enter the United States temporarily and solely for the purpose of pursu ing * * * a [full] course of study" at an approved aca demic institution or training program. 8 U.S.C. 1101(a)(15)(F)(i). Holders of such "F-1 status" have his torically been permitted to engage in employment dir ectly related to the course of study for a limited period of time after completion of the course of study, a prac tice formalized as Optional Practical Training (OPT). See 8 C.F.R. 214.2(f)(9)-(10). Some F-1 status students seeking continued employment after their F-1 status ends apply for H-1B status, which permits them to remain temporarily in the United States to perform services in a specialty occupation. See 8 U.S.C. 1101(a)(15)(H)(i)(b); 8 C.F.R. 214.2(h)(1)(ii)(B).

A 2008 Interim Final Rule of the Department of Homeland Security (1) lengthened the permissible peri od of OPT for students in certain fields, and (2) per mitted an F-1 status student in any field with a pending H-1B petition to remain in the United States pending the start of H-1B status (or denial of the petition). See 73 Fed. Reg. 18,944 (2008) (8 C.F.R. Pts. 214, 274a).

The question presented is whether domestic job ap plicants are within the zone of interests protected by F-1 status for nonimmigrant alien students.

In the Supreme Court of the United States

No. 09-590

THE PROGRAMMERS GUILD, ET AL., PETITIONERS

v.

JANET NAPOLITANO, SECRETARY OF HOMELAND SECURITY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-11a) is not published in the Federal Reporter but is reprinted in 338 Fed. Appx. 239. The orders of the district court (Pet. App. 13a-22a, 23a-33a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on July 17, 2009. A petition for rehearing was denied on August 17, 2009 (Pet. App. 35a-36a). The petition for a writ of certiorari was filed on November 13, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., defines a variety of classes of non immigrant aliens who are admissible to the United States by virtue of their occupational, educational, offi cial, or other status, and who may remain in the United States subject to statutory conditions and, inter alia, further conditions imposed by the Secretary of Home land Security (DHS or Secretary). This case concerns an Interim Final Rule (Rule) promulgated by the Secre tary regarding nonimmigrant aliens in "F-1 status," which covers certain alien students seeking to enter the United States to pursue a full course of study. In addi tion to addressing the conditions of F-1 status, the Rule addresses the transition that some nonimmigrant aliens may make between F-1 status and "H-1B status," which covers certain workers seeking to enter the United States temporarily to perform services in a specialized occupation.

a. F-1 nonimmigrant aliens are foreign nationals who seek to enter the United States to pursue a full course of study in approved colleges, universities, semi naries, conservatories, academic high schools, private elementary schools, other academic institutions, or lan guage training programs in the United States. 8 U.S.C. 1101(a)(15)(F). With narrowly drawn exceptions, hold ers of F-1 status are not permitted to engage in employ ment in the United States. See 8 C.F.R. 214.2(f)(9). With the approval of United States Citizenship and Im migration Services (USCIS) in DHS, however, such an alien may engage for a limited time in employment that takes the form of practical training "in a position that is directly related to his or her major area of study." 8 C.F.R. 214.2(f)(10). One category of practical training, known as Optional Practical Training (OPT), permits an F-1 status student to engage in such training after com pletion of his or her full academic course of study, a practice known as post-completion OPT. See 8 C.F.R. 214.2(f)(10)(ii)(A)(3).1 Prior to promulgation of the Rule, F-1 status students had been eligible to seek authoriza tion for up to 12 months of OPT. 8 C.F.R. 214.2(f)(10) (2008).

Once an F-1 status student has completed his or her full course of study, including any authorized OPT after completion of studies, the student must transfer to an other approved educational institution to continue stud ies; change to a different nonimmigrant status; other wise legally extend his or her period of authorized stay in the United States; or leave the United States. See 8 C.F.R. 214.2(f)(5)(iv). F-1 status students are allowed 60 days after the completion of their studies and any post-completion OPT to prepare for departure from the United States. Ibid.

b. H-1B nonimmigrant aliens are foreign nationals who seek to enter the United States "temporarily * * * to perform services * * * in a specialty occupation," and satisfy other criteria. 8 U.S.C. 1101(a)(15)(H)(i)(b); 8 C.F.R. 214.2(h)(1)(ii)(B). A "specialty occupation" is one that requires the theoretical and practical applica tion of a body of specialized knowledge and a bachelor's or higher degree in the specialty as a minimum qualifi cation. 8 U.S.C. 1184(i). H-1B status generally may be extended to a total of six years from the date that em ployment begins. See 8 C.F.R. 214.2(h)(15)(ii)(B)(1).

Congress caps the number of individuals who may assume H-1B status each year. That quota presently stands, with certain exceptions, at 65,000 H-1B visas per fiscal year (i.e., October 1 to September 30). See 8 U.S.C. 1184(g)(1)(A)(vii) and (5). Because a petition for an H-1B visa may not be filed or approved more than six months before employment is to commence, see 8 C.F.R. 214.2(h)(9)(i)(B), a large volume of such peti tions is typically received starting in early April (six months before the October 1 start of the following fiscal year's quota), causing the quota to be filled well before the start of the fiscal year. For example, USCIS re ceived approximately 150,000 petitions for H-1B visas on the first day in April 2007 it accepted such petitions. See USCIS, USCIS Reaches FY 2008 H-1B Cap (Apr. 3, 2007), http://www.uscis.gov/files/pressrelease/ H1BFY08Cap040307.pdf.

c. Some graduating F-1 status students seek H-1B status to remain in the United States as employees in a technical field requiring advanced study. For an F-1 status student who obtains H-1B status, the compressed H-1B petition timetable described above causes the typi cal alien student to experience a gap between the expira tion of F-1 status (after the alien graduates or ends post-completion OPT) and the commencement of H-1B status (typically early the following October)-a period during which the alien cannot lawfully be present in the United States. This problem is sometimes referred to as "Cap-Gap." The employers who employ F-1 status stu dents on OPT-particularly those in high-demand fields of science, technology, engineering, and mathematics (STEM)-face a related set of problems: an F-1 status student on OPT may not obtain one of the limited num ber of H-1B visas for the coming fiscal year, and thus may be forced to leave employment; and even if the em ployee does obtain an H-1B visa, he may have to leave his employment and the United States during the Cap- Gap period.

To address these problems-and the immediate com petitive disadvantage they created for domestic high- technology industries that need to recruit and retain skilled workers to compete globally-the Secretary pro mulgated an Interim Final Rule on April 8, 2008, as the 2008 Cap-Gap period affecting the greatest number of F-1 status students was beginning. The Rule (1) ex tended the maximum OPT period for an F-1 status stu dent with a STEM degree to 29 months (subject, as be fore, to USCIS approval), and (2) permitted any F-1 status student with a pending H-1B petition to remain in the United States until he commences H-1B status or the petition is denied. Department of Homeland Secu rity, Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students with STEM Degrees and Expanding Cap-Gap Relief for All F-1 Stu dents with Pending H-1B Petitions, 73 Fed. Reg. 18,944 (codified at 8 C.F.R. Pts. 214, 274a) (reproduced at Pet. App. 45a-96a). The Rule does not create a new classifi cation of foreign workers or a new visa category, nor does it confer a new benefit on any existing class of nonimmigrant aliens; it only alters the time frame for the longstanding practical training aspect of F-1 status.

2. Petitioners-a group of three representative or ganizations and eleven individuals trained in computer programming, engineering or other technical fields- filed suit under the Administrative Procedures Act (APA) in the United States District Court for the Dis trict of New Jersey to enjoin the Secretary from imple menting the Rule. They asserted that they would suffer from increased competition in the STEM job market from F-1 status STEM students engaged in OPT who could not be employed in the United States but for the Rule's changes to the duration of F-1 status. Petitioners contended that the Rule is not in accordance with the statute outlining F-1 status, 8 U.S.C. 1101(a)(15)(F)(i), and that promulgating the rule as an interim final rule without opportunity for advance notice and comment violated the APA's notice-and-comment requirement, 5 U.S.C. 553(b). See Pet. App. 97a-111a (amended com plaint).

a. The district court denied petitioners' motion for a preliminary injunction. Pet. App. 23a-33a. It began by noting "serious questions related to [petitioners'] stand ing," and ordered petitioners to show cause why their complaint should not be dismissed for lack of standing. Id. at 26a, 33a. The district court further found petition ers' claims unlikely to succeed on the merits because Congress had granted the Secretary broad authority for carrying out the INA in general, and for specifying "the time period in which nonimmigrants can remain in the country" in particular. Id. at 28a. The district court also found the other relevant factors to weigh against granting the requested injunction. Id. at 28a-32a.

b. Following further briefing, the district court dis missed the complaint for lack of Article III standing, for lack of prudential standing, and in the alternative for failure to state a claim upon which relief may be grant ed. Pet. App. 13a-22a. The district court concluded that petitioners lacked Article III standing on three inde pendent grounds: First, they failed to establish an in jury-in-fact from mere increased competition in the job market; such an injury was not "concrete and particular ized" or "actual or imminent," rather than "conjectural or hypothetical." Id. at 15a-16a. Second, they failed to demonstrate a causal nexus between their alleged inju ries and the Rule, because none of the petitioners is reg ulated by the Rule and they could not "show that the [Rule] is * * * responsible for their alleged injuries," given that "[petitioners] are currently unemployed or under-employed as a result of a wide range of independ ent factors." Id. at 17a & n.5. Third, the district court found petitioners' alleged injuries were not likely to be redressed by a favorable decision because invalidating the Rule would neither eliminate competition for jobs in petitioners' fields nor guarantee the improved economic conditions they sought. See id. at 17a-18a.

The district court further held that petitioners had not established prudential standing, for two independent reasons. First, it found that petitioners' objection to the increased competition for jobs posed by the Rule was merely a generalized grievance about government immi gration policy. Pet. App. 18a. Second, the district court held that petitioners were not within the "zone of inter ests" protected by the Rule, which was intended to im prove the domestic high-technology industry's competi tive position for students and workers while easing visa application procedures for OPT students, not to increase competition for such jobs or harm American workers. Id. at 18a-19a.

Turning in the alternative to the merits, the district court held petitioners could not establish that the Rule exceeds the Secretary's authority under 8 U.S.C. 1103(a)(3) to "establish such regulations * * * as [s]he deems necessary for carrying out h[er] authority under the provisions of [the INA]." Pet. App. 20a. The court noted that Congress specifically conferred on the Secre tary authority to set the periods of time for which nonimmigrant aliens may remain in the country, and the court found it appropriate to defer to the Secretary's exercise of that authority here. Id. at 20a n.10 (citing, inter alia, 8 U.S.C. 1184(a)(1)). Finally, the district court concluded that petitioners offered no nonspecula tive challenge to the Secretary's determination that "good cause" exited under 5 U.S.C. 553(b)(B) for giving the Rule immediate effect without a notice and comment period, because the public interest would have been harmed by forcing approved H-1B visa holders then in F-1 status to leave the United States upon expiration of their F-1 status. Pet. App. 21a.

3. The court of appeals affirmed the dismissal of peti tioners' complaint on prudential standing grounds in an unpublished opinion. Pet. App. 1a-11a. It held (on rea soning different from the district court's) that petition ers' employment concerns were not within the zone of interests protected by 8 U.S.C. 1101(a)(15)(F)(i), the basis of their challenge.

The court explained that to establish prudential standing, a plaintiff must show that the interest it seeks to vindicate "is arguably within the zone of interests to be protected . . . by the statute . . . in question." Pet. App. 5a (citing Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)). For those purposes, the court noted, the "statute . . . in question" encompasses the provision allegedly violated by the administrative action and provisions having an "integral relationship" to it, but the test "should not be applied so loosely-[s]uch as by deeming each section of an act 'integrally related' to all other sections-as to render it meaningless." Ibid. (citing Air Courier Con ference of Am. v. American Postal Workers Union, 498 U.S. 517, 529-530 (1991)).

Applying that test, the court of appeals rejected peti tioners' argument that the relevant statute here is the entire INA, noting that this Court has "squarely disal lowed such a kitchen-sink approach * * * and requires litigants to identify the relevant provisions with some particularity." Pet. App. 6a (citing Air Courier Confer ence, 498 U.S. at 529-30). The court of appeals found the relevant provision here to be "the one [petitioners] allege [the Secretary] actually violated: 8 U.S.C. § 1101(a)(15)(F)(i), defining F-1 status." Ibid. The court stressed that petitioners "never argue precisely why [their asserted competitive] injury arguably falls within the zone of interests protected by [Section] 1101(a)(15)(F)(i) in particular," and accordingly found that petitioners lacked prudential standing. Id. at 8a.

Canvassing the leading decisions from the D.C. Cir cuit addressing prudential standing to challenge deci sions allowing particular classes of aliens into the United States, the court of appeals recognized that domestic workers have been held to have prudential standing when the statutory provision at issue contained "lan guage conditioning entry into the United States on non interference with domestic labor conditions," Pet. App. 10a, but have been held to lack prudential standing when the particular statutory provision at issue contained no such language. See id. at 8a-10a. In the former cate gory, the court of appeals pointed to International Un ion of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798 (D.C. Cir. 1985), which found prudential standing in a case involving the Secretary of Labor's certification under current 8 U.S.C. 1182(a)(5)(A)(i) that admission of certain aliens would not adversely affect domestic workers' wages and working conditions. See Pet. App. 9a-10a. In the latter category, the court of appeals pointed to Federation for American Immigra tion Reform, Inc. v. Reno, 93 F.3d 897 (D.C. Cir. 1996), cert. denied, 521 U.S. 1119 (1997), which found no pru dential standing in a case concerning an exercise of the Attorney General's parole authority under 8 U.S.C. 1182(d)(5)(A)). See Pet. App. 8a-9a.

The court of appeals concluded that such concerns were not within the zone of interests protected by Sec tion 1101(a)(15)(F)(i) because "the F-1 status provision contains no language conditioning entry into the United States on noninterfererence with domestic labor condi tions," and because Congress had not otherwise ex pressed its intent by, for example, adding such language to Section 1101(a)(15)(F)(i), despite many opportunities to do so. Pet. App. 10a-11a.

ARGUMENT

The court of appeals' unpublished decision is correct and consistent with other appellate decisions on pruden tial standing in the immigration context. Such cases arise only infrequently, and they typically turn on case- specific assessments of the particular statutory provi sion at issue. Moreover, as the district court recog nized, prudential standing is only one of many defects in petitioners' case: they also cannot establish Article III standing and their underlying claims are meritless. Further review is not warranted.

1. The court of appeals' decision is correct and does not reflect any disagreement among the courts of ap peals concerning prudential standing under the particu lar statutory provision at issue here.

a. Petitioners contend that the court of appeals erred both in determining that the prudential standing inquiry here focuses on 8 U.S.C. 1101(a)(15)(F)(i), rather than "the immigration laws" writ large, see Pet. 18-20, and in concluding that domestic worker protection is not within the zone of interests protected by Section 1101(a)(15)(F)(i), see id. at 20-23. Neither contention is correct.

As the court of appeals correctly recognized, petition ers' position "that the relevant statute is the entire INA" is squarely foreclosed by this Court's decision in Air Courier Conference of America v. American Postal Workers Union, 498 U.S. 517 (1991). Air Courier Con ference concerned the Postal Service's adoption of a rule that permitted private carriers to compete with it in cer tain international markets; postal employees challenged the rule, arguing that it would harm their interests by reducing the volume of postal work for them to perform. See id. at 519-521. The Court recognized that the stat utes governing the Postal Service's monopoly (and the challenged rule) were enacted along with statutes gov erning postal labor-management relations, see id. at 528-529, but explained that "to hold that the relevant statute in this case is the [entire package of laws], with all its various provisions * * * could deprive the zone- of-interests test of virtually all meaning." Id. at 529-530 (internal quotation marks omitted). The same is true here: portions of the immigration laws doubtless em brace domestic worker protection, see Pet. App. 9a-10a, but a court cannot "accept this level of generality," Air Courier Conference, 498 U.S. at 529-530.

Instead, "the relevant statute [under the APA] of course, is the statute whose violation is the gravamen of the complaint." Air Courier Conference, 498 U.S. at 529 (quoting Lujan v. National Wildlife Fed'n, 497 U.S. 871, 886 (1990)) (brackets in original). Here, that is 8 U.S.C. 1101(a)(15)(F)(i)-the only immigration provision cited in petitioners' amended complaint. See Pet. App. 97a- 111a. As the court of appeals put it, "[t]he relevant pro vision here is the one [petitioners] allege [the Secretary] actually violated: 8 U.S.C. 1101(a)(15)(F)(i), defining F-1 status." Id. at 6a.

The court of appeals correctly concluded that 8 U.S.C. 1101(a)(15)(F)(i) does not embrace worker pro tection within its zone of interests. The foremost indica tion of that is the provision's text: There is no language in 8 U.S.C. 1101(a)(15)(F)(i) that prohibits an F-1 status student from working; indeed, if there were, students participating in OPT would be in violation of 8 U.S.C. 1101(a)(15)(F)(i).2

Text aside, there is no other indication that domestic worker protection is within the zone of interests pro tected by 8 U.S.C. 1101(a)(15)(F)(i). As petitioners con cede (Pet. 11), practical training has been permitted for over 60 years. See Pet. App. 10a; pp. 2-3 and note 1, supra. Yet despite this long history of F-1 status stu dents engaging in practical training, Congress has re peatedly amended Section 1101(a) (most recently on October 10, 2008, after promulgation of the Rule) with out addressing domestic worker protection. See Pet. App. 10a (citing Special Immigrant Nonminister Reli gious Worker Program Act, Pub. L. No. 110-391, § 2(a)- (b), 122 Stat. 4193). That acquiescence has great force when, as here, administration of the statute in question is committed in large measure to agency discretion. Cf. Lorillard v. Pons, 434 U.S. 575, 580 (1978).3

b. Petitioners cite several cases in support of their claim that the unpublished decision below conflicts with other courts of appeals' immigration decisions. Pet. 18, 24-28. None, however, shows any active disagreement among the circuits.

First, petitioners cite Ahmed v. United States, 480 F.2d 531, 532 (2d Cir. 1973), and Patel v. INS, 811 F.2d 377 (7th Cir. 1986), for the proposition that "protection of domestic workers was among Congress's concerns in enacting and re-enacting the F-1 status pro vision." Pet. 24. But as an initial matter, neither case raised or addressed a question of prudential standing. That aside, although both cases concerned F-1 visa hold ers, the illegality of the alien's conduct in each case traced to his violation of a separate condition on his presence in the United States that he not obtain employ ment without prior approval-a condition not in 8 U.S.C. 1101(a)(15)(F)(i), but imposed instead by a regulation.4 See Patel, 811 F.2d at 378 & nn.2-3; Ahmed, 480 F.2d at 532-533 & nn.1-2. At most, therefore, Ahmed and Patel illustrate the general proposition that sometimes the immigration laws are administered with a view to pro tection of domestic workers. But as explained above, this Court's zone-of-interests jurisprudence-Air Cou rier Conference in particular-does not permit a would- be plaintiff to frame the inquiry at such a high level of generality.

Second, petitioners take issue with the court of ap peals' reading of D.C. Circuit prudential standing cases. See Pet. 24-28. But the court of appeals correctly ex plained how its holding was consistent with both Inter national Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798 (D.C. Cir. 1985) (Bricklayers), and Federation for American Immigration Reform, Inc. v. Reno, 93 F.3d 897 (D.C. Cir. 1996) (FAIR), cert. denied, 521 U.S. 1119 (1997). See Pet. App. 8a-11a.

Bricklayers, on the one hand, found domestic work ers to have prudential standing in a case challenging the issuance of visas allegedly in violation of 8 U.S.C. 1101(a)(15)(H) and 1182(a)(14) (1982). It reached that conclusion because those provisions permit aliens to en ter the United States "if unemployed persons capable of performing [particular] service or labor cannot be found in this country," and "the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed." Bricklayers, 761 F.2d at 800. As the D.C. Circuit ex plained, "[t]he wording of the statute gives a clear indi cation of the interests which [Section 1182(a)(14) (1982)] was designed to protect" and "indicates congressional concern for and a desire to protect the interests of the American workforce." Id. at 804.5

FAIR, by contrast, rejected Florida residents' argu ment that they had prudential standing to challenge the Attorney General's parole and adjustment of status of Cuban nationals. The prudential standing argument was premised on the theory that the immigration laws pro tected people in localities likely to be affected by an in flux of immigrants. See FAIR, 93 F.3d at 900-904. The D.C. Circuit rejected that argument because the plain tiff "ha[d] pointed to neither language in the statute on which it relies" nor "legislative history that even hints at a concern about regional impact." Id. at 901.

The decision below is consistent with both Bricklay ers and FAIR. In all three cases, the courts ascertained the zone of interests of the provision in question by look ing to the statutory language and other indicia of con gressional intent. Petitioners selectively quote the deci sions in an attempt to suggest a conflict of legal princi ples with the Third Circuit.6 But the different outcomes simply reflect different interests protected by different provisions, revealed when the courts focused on "the provisions under which the suit was brought" and "pro visions having an 'integral relationship' with [those] pro visions," FAIR, 93 F.3d at 904 (quoting Air Courier Conference, 498 U.S. at 530).

Finally, the decision below is also consistent with the holding on prudential standing in International Longshoremen's & Warehousemen's Union v. Meese, 891 F.2d 1374 (9th Cir. 1989) (ILWU). There, the Ninth Circuit held, in a two-sentence ruling, that protection of domestic harbor worker jobs was within the zone of in terests of 8 U.S.C. 1101(a)(15)(D), which permits non immigrant alien vessel crewmembers to enter the Uni ted States, so long as they are serving "in any capacity required for normal operation and service on board a vessel." Although Section 1101(a)(15)(D) is in some re spects phrased similarly to Section 1101(a)(15)(F)(i), the former is expressly directed at regulating the employ ment of nonimmigrant alien crewmembers, while the latter does not evince concern for employment at all. Moreover, the Ninth Circuit's reasoning in ILWU was that "[a] primary purpose of the immigration laws * * * is to protect American laborers." 891 F.2d at 1379. This Court rejected that sort of generalized zone- of-interests inquiry in Air Courier Conference, supra. Air Courier Conference was decided after ILWU, and given an opportunity, the Ninth Circuit may reexamine that aspect of ILWU in light of Air Courier Conference.

c. In all events, cases raising prudential standing questions under particular provisions of the immigration laws arise infrequently, and petitioners admit as much. See Pet. 19 (characterizing the opinion below as "the first post-1990 decision on foreign student work authori zation"). Petitioners suggest that the court of appeals adopted a per se rule that a plaintiff has prudential standing only if he can point to express language placing him within the statute's zone of interests. See Pet. 19, 25, 27. The court of appeals' reasoning is not so categor ical; it considered other indicia of congressional intent, such as Congress's longstanding acquiescence in admin istrative rules permitting F-1 status students to work. See Pet. App. 10a.

Thus, this case does not present any large question of prudential standing doctrine. At bottom, petitioners simply disagree with the court of appeals' assessment of the zone of interests protected by a particular provision of the INA, and posit that a generalized interest in worker protection in the immigration laws suffices to confer prudential standing on them. Such a narrow and infrequently arising question does not merit this Court's review, especially when addressed, as in this case, in an unpublished decision.

2. Even if there were an active dispute among the courts of appeals implicating the question presented, this case would be an undesirable vehicle for reaching a question of prudential standing because-as the district court recognized below-petitioners lack Article III standing and their underlying claims are meritless.

a. As the district court cataloged in some detail, Pet. App. 14a-18a, petitioners lack Article III standing to challenge the Rule:

[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not con jectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as op posed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (internal quotation marks, alterations, and cita tions omitted). Petitioners can show none of these.

Injury in fact. Petitioners have suffered no injury in fact because they cannot identify a job for which they were not hired, or from which they were fired. Instead, they assert that they suffer an injury from increased competition for jobs from nonimmigrants. But in the courts below, petitioners cited, and the government is aware of, no case holding that increased competition for employment is sufficiently "concrete and particularized" and not "hypothetical" to qualify as an injury in fact. And indeed, to recognize such an injury would render the injury-in-fact requirement almost meaningless in the context of challenges to government regulations, be cause the very nature of regulations is to affect the con duct of-and hence competition among-individuals or business. See Gov't C.A. Br. 25-31.

Causal connection. Petitioners also cannot establish a causal connection between the Rule and their putative injury. If they are unable to obtain employment on the terms they desire, that can be due in only the most at tenuated and speculative way to a regulation that per mits a limited class of workers (about 0.2% of the job pool cited by petitioners, see Gov't C.A. Br. 37) to re main employed in the United States for a few months longer than they were permitted prior to the Rule. See id. at 31-35.

Redressability. For the same reasons that petition ers cannot show that their alleged injuries are caused by the Rule, they cannot show how a decision invalidating the Rule would improve their job prospects. With or without the Rule, employers could still prefer or recruit OPT students, OPT students could still seek H-1B visas, and petitioners could still have difficulty finding a job or have their wages depressed. See Gov't C.A. Br. 36-39.7

b. Petitioners' claims also fail on the merits. See Gov't C.A. Br. 44-60. As noted above (see p. 6, supra), petitioners brought a procedural APA claim asserting that the Secretary improperly dispensed with the ad vance notice-and-comment requirement of 5 U.S.C. 553(b), and substantive claims asserting that the Rule conflicted with 8 U.S.C. 1101(a)(15)(F)(i).

As the district court recognized (Pet. App. 19a-21a, 26a-28a), both claims are meritless: The substantive claim fails because the Rule merely sets the "time" for which, and the "conditions" under which, a class of non immigrant aliens is permitted to be present in the Uni ted States-matters that are delegated to the Secretary, see note 4, supra. The fact that the condition in ques tion (practical training) has long been a feature of immi gration law only underscores the lawfulness of the Secre tary's regulation of this field. As for petitioners' proce dural claim, the APA permits dispensing with the usual notice-and-comment procedures "when the agency for good cause finds * * * that [such procedures] are im practicable, unnecessary, or contrary to the public inter est." 5 U.S.C. 553(b)(B). Here, confronted with an im pending Cap-Gap period affecting many foreign stu dents, the need for the United States to be more com petitive in attracting foreign students, and domestic busi nesses' need to recruit and retain skilled STEM work ers, the Secretary found that the public interest would be disserved by allowing another visa cycle to run (as a full notice-and-comment rulemaking would have necessi tated). See Pet. App. 69a-71a. In the face of that rea sonable finding, petitioners "failed to alleged facts be yond a speculative level that tend to establish that [the Secretary] acted without good cause in giving the [Rule] immediate effect." Id. at 21a.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
DAVID J. KLINE
VICTOR M. LAWRENCE
SAMUEL P. GO
Attorneys

MARCH 2010

1 Practical training for foreign students has been part of immigration law since at least 1947, when the Immigration and Nationalization Ser vice (INS) permitted practical training "for a six-month period subject to extension for not over two additional six-month periods." 8 C.F.R. 125.15(b) (1947). Congress has from time to time considered the issue of "practical training" and foreign students in the United States work force, but has generally left the administrative framework intact as it has evolved. See, e.g., S. Rep. No. 1515, 81st Cong., 2d Sess. 482-483 (1950); Immigration and Nationality Act Waivers, Foreign Students, Consular Functions Abroad, and Immigration Benefits to Illegitimate Children Before the Subcomm. on Immigration, Citizenship, and In ternational Law of the H. Comm. on the Judiciary, 94th Cong., 1st & 2d Sess. 21-28 (1976); National Comm'n for Manpower Policy, Special Rep. No. 20, Manpower and Immigration Policies in the United States 81 (Feb. 1978).

2 It may be that petitioners' contrary view-that the absence of statutory language authorizing F-1 status students to work absolutely bars such aliens from working-would bring their claims within the zone of interests protected by the provision. But that interpretation cannot be correct, because it would create at least two grave contradic tions. First, a canon that provisions of the INA prohibit anything not expressly permitted would nullify the Secretary's authority to adminis ter the INA, because the Secretary would have no discretion to author ize anything not already permitted by the INA itself. Congress has clearly indicated otherwise in delegating broad authority to the Secre tary to administer the INA and set the terms and conditions of nonim migrant aliens' presence in the United States. See 8 U.S.C. 1103(a)(3), 1184(a)(1). Second, petitioners' reliance on negative implication would "deprive the zone-of-interests test of virtually all meaning." Air Courier Conference, 498 U.S. at 530. Any plaintiff with an injury-in-fact would also have prudential standing because either his grievance would be addressed by the text of the statute (and thus be within the statute's zone of interests), or it would not (in which case, petitioners would say, the omission bespeaks an interest in withholding permission).

3 Petitioners' asserted nontextual evidence of congressional intent (Pet. 21-22) is similarly unpersuasive. The Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359, ad dressed foreign students generally (among many other subjects). IRCA is irrelevant because this case concerns what students in F-1 status are permitted to do when lawfully present in the United States, while IRCA is largely concerned with aliens who are not lawfully present in the United States. More to the point, nothing in IRCA draws a connection between domestic labor protections and F-1 status stu dents. The 1990 House Judiciary Committee Report petitioners cite (see Pet. 21) is unhelpful because it is not connected to any statu tory language controlling F-1 status; at most, it speaks to Congress's intent in revising the terms of other nonimmigrant alien statuses.

4 Such regulations were formerly promulgated under the authority granted to the Attorney General in 8 U.S.C. 1184(a)(1); that authority has been transferred to the Secretary by 6 U.S.C. 202 and 557.

5 Petitioners are mistaken in asserting (Pet. 27) that Bricklayers did not concern an alleged violation of the "H" visa provisions. The plaintiffs in Bricklayers "charge[d] that the [challenged instruction] promulgated by the INS violates the pattern set forth in [8 U.S.C. 1101(a)(15)(H) and 1182(a)(14) (1982)] * * * as to the proper manner by which nonimmigrant aliens shall be admitted to perform labor." 761 F.2d at 801. By contrast, petitioners' amended complaint asserts only that the Secretary has improperly exercised her authority under 8 U.S.C. 1101(a)(15)(F)(i). See Pet. App. 97a-111a.

6 For example, petitioners quotes FAIR's statement that "[w]e do not believe that an affirmative signal of Congressional intent to permit a suit is required for a finding of prudential standing," Pet. 26 (quoting 93 F.3d at 902), but they ignore the FAIR court's very next statement, "But we have also held that the absence of a clear indication of congres sional intent to forbid the suit does not automatically confer standing on the plaintiff." Ibid.

7 Petitioners would also lack standing because they assert only a "generally available grievance about government"; the interest they propose to vindicate is shared by the public as a whole, and the relief they seek would "no more directly and tangibly benefit[] [them] than * * * the public at large." Defenders of Wildlife, 504 U.S. at 574.