On Thursday October 6, 2022 the Department of Justice appealed the recent D.C Circuit Court of Appeals opinion. That opinion reversed the district court’s dismissal of the Humane Society of the United States’ (HSUS) case against the USDA claiming the 2017 Horse Protection rule could not be withdrawn without notice and comment because the rule was final. The rule was never published in the Federal Register, which has been the longstanding threshold for a rule to become final. The DOJ is seeking panel rehearing.
The district court agreed with the USDA that the rule had not met the requirements to become final and thus USDA could withdraw without notice and comment.  In a 2-1 opinion, the court of appeals overturned the lower courts decision.  The DOJ is only appealing the remedy in the case and asking the court to delete a portion of its opinion so that the district court would have wide discretion to fashion a remedy. The USDA has already begun new rulemaking in Horse Protection that would include among other things items from the 2021 report of the National Academies of Science.  
More information on the impact of this appeal and other decisions of the court will be coming in the next several days.