United States Court of Appeals, District of Columbia Circuit
April 20, 2017
from the United States District Court for the District of
Columbia (No. 1:14-cv-00529)
M. Miano argued the cause for appellant. With him on the
briefs were Dale Wilcox and Michael Hethmon.
S. Press, Attorney, U.S. Department of Justice, argued the
cause for appellee. With him on the brief was Glenn M.
Girdharry, Assistant Director.
Before: Henderson and Kavanaugh, Circuit Judges, and
Sentelle, Senior Circuit Judge.
SENTELLE, SENIOR CIRCUIT JUDGE:
Washington Alliance of Technology Workers
("Washtech") received a fee award under the Equal
Access to Justice Act ("EAJA"), 28 U.S.C. §
2412, for proceedings in which it partially succeeded in
challenging a Department of Homeland Security practice
allowing student visa holders to remain in the United States
after completion of their formal education. Washtech appeals
from the award, arguing that the district court erred in
compensating it only for legal services time devoted to the
one claim upon which it succeeded, as opposed to the entire
litigation, and that the court abused its discretion in
ordering further reductions from the amount sought. Because
we conclude that the district court did not abuse its
discretion, we affirm the decision of the district court.
2002, when Congress created the United States Department of
Homeland Security ("DHS"), it transferred to the
Secretary of Homeland Security the authority and
responsibility theretofore residing in the Attorney General
for the administration and enforcement of the Immigration and
Naturalization Act, 8 U.S.C. § 1101, et seq.
(the "Act"). The statute authorizes various visas
allowing of the admission to the United States of specified
categories of aliens for specified purposes. The "F-1
student visa" authorizes admission of "bona fide
student[s] qualified to pursue a full course of study"
and who seek entry to the United States "temporarily and
solely for the purpose of pursuing" studies as specified
in the Act. Id. § 1101(a)(15)(F)(i). DHS and
its predecessor agencies have long permitted aliens with
student visa status to remain in the United States after
graduation to participate in the workforce as part of an
Optional Practical Training program ("OPT").
See, e.g., Pre-Completion Interval Training; F-1
Student Work Authorization, 57 Fed. Reg. 31, 954 (July 20,
1992) (codified at 8 C.F.R. § 214.2(f)(10)(ii))
("1992 OPT Rule"). Between 1992 and 2007, the 1992
OPT Rule authorized one year of employment after graduation
to alien guestworkers. 8 C.F.R. § 214.2(f)(11) (2007).
DHS subsequently extended the OPT period by 17 months for
students with a science, technology, engineering, or
mathematics degree. Extending Period of Optional Practical
Training, 73 Fed. Reg. 18, 944 (Apr. 8, 2008) (codified at 8
C.F.R. pts. 214, 274a) ("2008 OPT Rule"). Washtech,
a labor union that represents American workers in technology
fields, filed a complaint in federal district court, alleging
three counts challenging the OPT program as a whole, arguing
that it was unlawful for DHS to allow "students" to
remain in the United States and work after they had
graduated. These claims were dismissed early in the case
after the district court found that Washtech lacked standing
to pursue them. See Wash. All. of Tech. Workers v.
Dep't of Homeland Sec., 74 F.Supp.3d 247, 252
(D.D.C. 2014). Remaining counts related to the 2008 OPT Rule
extending the maximum OPT period, challenging the 2008 OPT
Rule on procedural and substantive grounds. The district
court rejected Washtech's claim that DHS exceeded its
statutory authority by issuing the 2008 OPT Rule but upheld
Washtech's claim that DHS had waived notice and comment
without good cause. Wash. All. of Tech. Workers v.
Dep't of Homeland Sec., 156 F.Supp.3d 123, 140-45,
145-47 (D.D.C. 2015) ("Merits Opinion"). The court
vacated the rule but stayed vacatur for six months and
directed DHS to "submit the 2008 [OPT] Rule for proper
notice and comment." Id. at 149. Washtech
the pendency of the appeal, DHS moved the district court to
alter its judgment so as to extend the stay of vacatur of the
2008 OPT Rule, a motion that Washtech opposed. The district
court extended the stay of vacatur for approximately three
months. Washtech subsequently appealed that decision.
March 11, 2016, DHS promulgated a new rule to replace the
2008 OPT Rule. See Improving and Expanding Training
Opportunities for F-1 Nonimmigrant Students With STEM Degrees
and Cap-Gap Relief for All Eligible F-1 Students, 81 Fed.
Reg. 13, 040 (Mar. 11, 2016) (codified at 8 C.F.R. pts. 214,
274a) ("2016 OPT Rule"). On May 13, 2016, this
Court held that the issues raised in the appeal before it
were therefore moot. Wash. All. of Tech. Workers v.
Dep't of Homeland Sec., No. 15-5239, 650 F.App'x
13 (D.C. Cir. May 13, 2016).
filed a motion for fees under the EAJA. The district court
held that Washtech was a prevailing party under the EAJA and
awarded fees. Wash. All. of Tech. Workers v. Dep't of
Homeland Sec., 202 F.Supp.3d 20, 24-26 (D.D.C. 2016).
However, the court awarded a significantly lower fee than
Washtech requested. Id. at 29. The court declined to
award fees for any activities undertaken after its Merits
Opinion because "plaintiff achieved no success in this
litigation" after that date. Id. at 28-29. And
because it found Washtech's victory "marginal,
" the court awarded Washtech 15% of the remaining
requested fees and expenses. Id. at 29. Washtech
filed the present appeal.