Fifth Circuit grants request to delay appeal on federal overtime rule

Written on Feb 27, 2017

The appeal regarding the validity of the federal overtime rule will not be fully briefed until May 1, 2017, according to an order issued by the Fifth Circuit Feb. 22, granting an unopposed request by the Department of Justice (DOJ) for an extension.

When the Department of Labor (DOL) first appealed the nationwide injunction issued by a Texas district court blocking the federal overtime regulation, it requested the Fifth Circuit to expedite the appeal. That was before the election. Since the election, the DOJ (representing the DOL) has requested just the opposite. In January, the DOJ asked for an additional 30 days, until March 2, 2017, to submit its final brief in support of the appeal. And on Feb. 17, the DOJ asked for an additional 60 days, until May 1, to submit its final brief. In a short unopposed motion, the DOJ requested the additional time “to allow incoming leadership personnel adequate time to consider the issues.”

The request may have resulted from the withdrawal of Andrew Puzder from consideration as Secretary of Labor. The additional time will presumably allow Alexander Acosta, the current nominee for Secretary of Labor, to assess the government’s position on the appeal, if confirmed.

Meanwhile, back at the district court, a motion by the Texas AFL-CIO to intervene in the action is still pending, as is the motion for summary judgment filed in the case brought by various business groups, which was fully briefed on Nov. 21, and which the State Plaintiffs moved to join. The district court subsequently denied a motion to stay proceedings pending the appeal on Jan. 3. It is possible, therefore, the district court could issue a ruling on the summary judgment before the appeal is decided.

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