Notice & Comment

Ferrets Ahead? Trump’s Regulatory “Two-for-One” Litigation Moves on to (at least some measure of) Discovery

There was a big development in the litigation challenging Trump’s regulatory “two-for-one” executive order last night. As I blogged about earlier, Judge Moss previously dismissed the case for lack of standing on February 26, 2018. Plaintiffs requested the ability to amend their complaint in light of the opinion, which the government did not oppose. That second amended complaint was filed later in April, the government filed a motion to dismiss that second amended complaint in May, and plaintiffs filed a memorandum in opposition to that motion to dismiss in June.

Fast forward to yesterday, when Judge Moss issued his latest memorandum opinion and order. I hope to recap the opinion later on, but in short it denies both motions, leaving the case “a liminal state.” (I’m picturing Janet’s void (The Good Place spoiler alert).)

It goes on:

The Court, of course, cannot consider the merits of Plaintiffs’ underlying claims without first concluding that it has jurisdiction. . . . But nor can either party move forward absent further factfinding. The government argues that it needs “an opportunity to investigate and take discovery on Plaintiffs’ conclusory claims that the Executive Order will affect a particular regulatory activity and thereby cause injury to the organizational Plaintiffs or their members.”  . . . Plaintiffs likewise need more information to press their claim that the Executive Order and OMB Guidance have delayed or derailed the proposed rules they have identified. In fashioning next steps, “[t]he [C]ourt has considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction,” Prakash, 727 F.2d at 1179, and, although the Court will consider “whether limited discovery to explore jurisdictional facts is appropriate,” Obama v. Klayman, 800 F.3d 559 (D.C. Cir. 2015), there may be other vehicles—short of formal discovery—to tee up the unresolved factual issues for decision. The Court will, accordingly, schedule a status conference to discuss next steps and how best to move this case closer to resolution.

Public Citizen, Inc. et al v. Trump, Civ. Action No. 17-253, slip. op. at 53 (some citations omitted) (emphasis added). Watch this space for updates!

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