The appellate Court has advised that it will schedule oral argument as soon as possible after briefs are submitted.
The successful (for the moment) plaintiffs are not at all cowed by this development. The Nevada Solicitor has stated that "the Fifth Circuit's willingness to expedite oral argument shows that it recognizes the national importance of this issue. As we did in the district court, the states look forward to presenting how this new overtime rule is unlawful and presents a sweeping departure from over 75 years of past practice."
The twenty-one States that had brought the suit opposed the fast-tracking of the appeal. They asserted that such an expedited proceeding could conflict with the lower court's ruling on their motion arguing for final judgment invalidating the DOL rule. These plaintiffs also argued that if the lower court issued a new decision, that action would then moot the preliminary injunction and the Fifth Circuit would not have needed to rearrange its calendar and oral argument schedule.
The DOL countered by asserting that even if court below issued a final order, the Fifth Circuit would then consolidate the preliminary injunction appeal with the agency's appeal from final judgment. The DOL argued that this approach would be very efficient because the legal basis for the grant of a preliminary injunction would be the legal foundation for the summary judgment proceeding and Order.
The Takeaway
As they say, now the fun begins.
Anyone who tells you they know how this will turn out does not, really know at all.
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