Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “Use of Injunctions Against Agency Rules Raises Eyebrows,” by Jon Steingart. (Read the full version – subscription required.)

Following is an excerpt:

Challenges to rules issued by the U.S. Department of Labor and other federal agencies that seek preliminary injunctions have drawn increasing scrutiny as these cases have multiplied and courts issue orders with a nationwide impact, attorneys told Law360.

A suit alleging an agency violated the Administrative Procedure Act by acting arbitrarily and capriciously when it came up with a new rule often includes a motion for a preliminary injunction. Challengers to rules the DOL issued in recent years on independent contractor classification, determining prevailing wages under the Davis-Bacon Act, and minimum wage for federal contractors have sought injunctions. …

The scope of an injunction is something courts may consider when they decide whether to order one.

Paul DeCamp, a member of management-side firm Epstein Becker Green, told Law360 a nationwide injunction against an agency makes sense because it would be unworkable to have a patchwork of enforcement for some regulated entities but not others.

"There really should be only one interpretation of that rule that is consistent throughout the country, that the rule is either valid or it's invalid," he said. "It's difficult to envision a scenario where the agency is allowed to take action with regard to the regulation in some jurisdictions but not allowed to in others."

An organization that wants to sue to block a rule usually has options for where to file, giving it the choice between Washington, D.C., or the federal court in the district where it's based. A national organization that has chapters and members around the country may look for a court where it hopes that random judicial assignment will put its case before a judge who's likely to side with its arguments, then tap a member in that district to file a complaint there.

"It would be remiss of anybody bringing a lawsuit not to consider all of the aspects of the forum where they bring the case," DeCamp said. "That's just part of good lawyering."

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