District Court Requires More to Establish Standing to Challenge EO 13771

On February 8, the U.S. District Court for the District of Columbia issued its latest ruling in a case which challenges the President’s January 30, 2017 Executive Order constraining the ability of federal agencies to issue new regulations and the Office of Management and Budget’s (OMB) implementation of that Order. The case is Public Citizen, Inc., et al. v. Donald J. Trump, President of the United States, et al. The District Court has not yet been convinced that the petitioning plaintiffs have standing to make this challenge to this Order, and its mandate that two existing rules be eliminated for each new rule promulgated.

The plaintiffs argue that this Order and OMB’s implementation run afoul of the requirements of the Administrative Procedure Act and other laws passed by the Congress. In its first ruling, the District Court held that the petitioners had not made a plausible case that they have standing to sue, and permitted them to file a Second Amended Complaint to establish their standing.

After reviewing the Second Amended Complaint and the Government’s response, the District Court holds that they have satisfied him that they have made a plausible case that he should consider their arguments, but they have not satisfied the court that they can prevail now on their motion for summary judgment: “The plaintiffs have done enough to stay afloat but not enough to move forward.”

Briefly, the existing record does not establish the fact that their alleged injuries can be linked to Government inaction after the change in administrations; there are other reasons why this may be so. The various rules for which final action was pending when the administrations changed include new Department of Transportation light vehicle communications technology, airline baggage fee rules, prevention of workplace violence, and DOE energy efficiency standards for cookware. The District Court concludes by stating that additional factfinding may be needed to resolve the standing issues, and a status conference will soon be scheduled.

Finally, the District Court rejected the petitions of the States of California and Oregon to intervene in this litigation.