District Court Inclined To Dismiss Action Challenging EO 13771

On February 26, the U.S. District Court for the District of Columbia dismissed, for lack of jurisdiction, a challenge to the President’s Executive Order 13771, and two guidance documents issued by the Office of Management and Budget (OMB) that instruct the affected federal agencies on how to administer EO 13771. The case is Public Citizen, Inc., et al., v. Trump. However, the District Court stated it would hold another hearing (on March 1, 2018) to determine whether it should dismiss the complaint outright or give the plaintiffs an opportunity to amend their pleading.

Executive Order 13771 is the “two for one” EO, requiring executive agencies to identify two existing rules that can be eliminated when a new rule is proposed. In addition, the EO requires that the costs of regulation borne by the regulated community be offset, and imposes a regulatory cap on these agencies.

The nub of the complaint, filed by Public Citizen, Inc., the Natural Resources Defense Council, Inc. (NRDC), and Communication Workers of America, AFL-CIO (CWA), is that this EO imposes requirements on these agencies beyond those set forth in the Administrative Procedure Act and in some ways, conflicts with its statutory requirements.

On the motion of the government, the District Court dismissed the complaint on the grounds that the plaintiffs lacked standing under Article III of the Constitution to pursue the claims, whether their standing is described as “associational” or “organizational.” They did not demonstrate, on the record, that they or their members were harmed by EO 13771, or that their harms could be redressed. Many of the government’s actions they feared would be affected were either only proposed or projected to take place in the future. The District Court’s discussion of standing law takes up the bulk of its 51-page opinion.