Case 4:16-cv-00732-ALM Document 10 Filed 10/18/16 Page 1 of 6 PageID #: 779 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION PLANO CHAMBER OF COMMERCE, et al., Plaintiffs, v. THOMAS E. PEREZ, et al., Case No. 4:16-cv-732-ALM DEFENDANTS EMERGENCY MOTION TO STAY SUMMARY JUDGMENT BRIEFING OR IN THE ALTERNATIVE TO EXTEND TIME TO RESPOND Defendants. Defendants hereby respectfully move to stay summary judgment briefing. Nearly five months ago, the U.S. Department of Labor promulgated a new overtime rule, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees, 81 Fed. Reg. 32,391 (May 23, 2016) ( the Rule or Overtime Rule ), which is set to take effect on December 1, 2016. In September, nearly four months after the Rule s promulgation, Plaintiffs, a coalition of more than fifty-five business groups (collectively Business Plaintiffs ), filed this lawsuit seeking to vacate and set aside the Rule. Although the Business Plaintiffs have yet to effectively serve Defendants with proper summons, see Fed. R. Civ. P. 4, on October 14, 2016 nearly five months after the Rule was finalized but just seven weeks before it is set to take effect they filed a motion for expedited summary judgment. See ECF No. 7. In their motion, the Business Plaintiffs acknowledge that Nevada and 20 other states in Nevada et al. v. Dep t of Labor et al., No. 16-cv-731 (E.D. Tex.) (collectively State Plaintiffs ) have filed a motion for preliminary injunction asking this Court to preliminarily enjoin the Rule on a nationwide basis before it takes effect. The Business Plaintiffs have filed an 1
Case 4:16-cv-00732-ALM Document 10 Filed 10/18/16 Page 2 of 6 PageID #: 780 unopposed motion to consolidate their action with the State Plaintiffs action. See ECF No. 8. Defendants are diligently working on a response to the pending preliminary injunction motion, which is due October 31, 2016. See ECF No. 11 in civil action no. 16-cv-731 (E.D. Tex.). Pursuant to Local Rules 6(a) and 7(e), a response to Business Plaintiffs motion for summary judgment is also due October 31, 2016. Defendants request that the Court stay the Business Plaintiffs summary judgment motion until the motion for preliminary injunction in Nevada et al. v. Dep t of Labor et al., No. 16-cv-731 (E.D. Tex.), is adjudicated. There is good cause for a stay. The States Plaintiffs preliminary injunction motion which the Business Plaintiffs support, see ECF No. 7 at 4; ECF No. 8 at 1 is the more appropriate avenue for any expedited relief and will directly impact the Business Plaintiffs motion for expedited summary judgment. Should the Court grant a preliminary injunction, the Rule will not go in effect on December 1, 2016 while the parties brief the merits of Business Plaintiffs legal challenges; the denial of the preliminary injunction, on the other hand, would indicate that there is no need to expedite summary judgment briefing. Indeed, under the Business Plaintiffs proposed time frame, the Court would need to adjudicate a preliminary injunction motion concurrently with a summary judgment motion seeking a permanent injunction of the same rule. Moreover, the Business Plaintiffs have asked this Court to finally decide complex legal questions of national importance that will impact employers and workers throughout the United States in less than 50 days, without even providing time for Defendants to compile and certify an administrative record. A stay is appropriate in part because it will afford Defendants the time necessary to compile the administrative record. Summary judgment motions on claims under the Administrative Procedure Act ( APA ), like the Business Plaintiffs here, are adjudicated by 2
Case 4:16-cv-00732-ALM Document 10 Filed 10/18/16 Page 3 of 6 PageID #: 781 reference to the administrative record. Indeed, the APA requires review of the administrative record to adjudicate the Business Plaintiffs claims. See 5 U.S.C. 706 ( In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party. ); see also Medina Cnty. Envtl. Action Ass n v. Surface Transp. Bd., 602 F.3d 687, 706 (5th Cir. 2010); see also Fed. R. Civ. P. 56(d). The Business Plaintiffs assertion that the documents that comprise the administrative record are all publicly available is of no moment. See ECF No. 7 at 10 n.4. It is the Defendant agency that must determine the contents of the record and certify it for the Court s review. In this rulemaking, the Department received more than 270,000 timely comments. See Overtime Rule, 81 Fed. Reg. 32397. Compiling these comments with other relevant documents would take the Agency considerable time. Because such a voluminous record might be unwieldy for the Court and the parties, the parties could try to negotiate an agreement to limit the record, but this too would require time for the parties to come to an agreement and present it to this Court in the appropriate manner. All of these efforts must be completed in addition to considering and responding to the complex arguments raised in the Business Plaintiffs motion. And the Court should have sufficient time to consider the record, as well as the complex arguments raised in the parties briefs in this case, before making a final decision on the Business Plaintiffs claims, which seek to invalidate a duly promulgated rule that impacts workers and employers throughout the country. The Court should stay the Business Plaintiffs summary judgment motion pending proceedings on the preliminary injunction motion in Nevada, a case which the Business Plaintiffs have moved to consolidate with this action. That preliminary injunction motion not a summary 3
Case 4:16-cv-00732-ALM Document 10 Filed 10/18/16 Page 4 of 6 PageID #: 782 judgment motion filed before Defendants have been properly served 1 is the more appropriate vehicle for seeking expedited relief. Such a stay would allow the Department of Labor time to compile and certify the administrative record, which the Court must review to decide summary judgment, and also provide Defendants sufficient time to consider and respond to the arguments raised in the Business Plaintiffs motion. Defendants respectfully further request that the Court direct the parties to file a joint status report setting forth a briefing schedule on summary judgment within four weeks after the Court s decision on the preliminary injunction motion in Nevada. In the event the Court does not grant a stay, Defendants respectfully request, in the alternative, an extension of time to and including December 14, 2016 (four weeks from the November 16, 2016 preliminary injunction hearing in Nevada), in which to file a response to the Business Plaintiffs summary judgment motion. Such an extension is warranted for the same reasons that a stay is warranted in this case. Dated: October 18, 2016 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General JOHN MALCOM BALES United States Attorney JUDRY L. SUBAR Assistant Director Federal Programs Branch /s/ Julie Saltman JULIE SALTMAN 1 Moreover, under the Federal Rules of Civil Procedure, Defendants are entitled to 60 days to respond to the Complaint. See Fed. R. Civ. P. 12(b)(2). That sixty-day period has not yet begun to run because the Business Plaintiffs have not properly served Defendants with the Complaint in this case. 4
Case 4:16-cv-00732-ALM Document 10 Filed 10/18/16 Page 5 of 6 PageID #: 783 KEVIN SNELL Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 Telephone: (202) 532-4252 Fax: (202) 616-8470 Email: julie.saltman@usdoj.gov Counsel for Defendants 5
Case 4:16-cv-00732-ALM Document 10 Filed 10/18/16 Page 6 of 6 PageID #: 784 CERTIFICATE OF SERVICE I hereby certify that on October 18, 2016, I filed DEFENDANTS EMERGENCY MOTION TO STAY SUMMARY JUDGMENT BRIEFING OR IN THE ALTERNATIVE TO EXTEND TIME TO RESPOND electronically with the Clerk of the United States District Court for the District of Columbia through the CM/ECF system, which caused the following counsel of record to be served by electronic means: Robert Francois Friedman Littler Mendelson, P.C. - Dallas 2001 Ross Ave Suite 1500, Lock Box 116 Dallas, TX 75201-2931 (214) 880-8155 Rfriedman@littler.com Attorney for Plaintiff /s/ Julie Saltman JULIE SALTMAN CERTIFICATE OF CONFERENCE I hereby certify that I have complied with the meet and confer requirement in LOCAL RULE CV-7(h). I met and conferred with counsel for Plaintiff via telephone on October 18, 2016 regarding DEFENDANTS EMERGENCY MOTION TO STAY SUMMARY JUDGMENT BRIEFING OR IN THE ALTERNATIVE TO EXTEND TIME TO RESPOND. Counsel for Plaintiff stated that Plaintiffs oppose the motion. The discussions conclusively ended in an impasse, leaving an open issue for the court to resolve. LR CV-7(i). /s/ Julie Saltman JULIE SALTMAN 6