DHS will re-write rule on no-match letters, asks to suspend litigation

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DHS will re-write rule on no-match letters, asks to suspend litigation
November 24, 2007 by Ross Runkel at LawMemo

Department of Homeland Security filed a motion November 23 to stay proceedings pending in US District Court for the Northern District of California.

The motion states the government's intent to re-write its rule entitled "Safe Harbor Procedures for Employers Who Receive a No-Match Letter."

The government states that it expects that rulemaking will be completed by March 24, 2008.

If the court grants the government's motion, the preliminary injunction will stay in effect at least until March.

The government's intent is to address the issues raised by the district court when the court issued a preliminary injunction on October 10 barring implementation of the rule which had been scheduled to go into effect on September 14.

Previous history: On October 10, 2007 the US District Court for the Northern District of California issued an order granting a motion for a preliminary injunction barring the government from implementing its final rule entitled "Safe Harbor Procedures for Employers Who Receive a No-Match Letter." The rule was scheduled to go into effect on September 14. The court ruled that plaintiffs "have demonstrated a high probability of success on four theories: that the rule (1) contravenes the governing statute; (2) is arbitrary and capricious under the Administrative Procedures Act; (3) is an exercise of ultra vires authority by DHS and the Social Security Administration (SSA); and (4) was promulgated in violation of the Regulatory Flexibility Act."

Documents in the case:
Complaint.
Preliminary injunction.
Motion filed November 23, 2007.
Rule.
Fact Sheet.

My view: A smart move on the part of the government. The judge has already indicated that he sees several flaws in the current rule and in the way it was adopted. By drafting a new rule, the government has an opportunity to fix the flaws. Meanwhile, there is no point trying to defend the current rule.