DOL Rule Rehearing Is ‘Unjustifiable’: Eugene Scalia
The lawyer who fought to vacate the rule says requests like those filed by the AARP and three states have a low success rate.
The U.S. Chamber of Commerce, Financial Services Institute and the Securities Industry and Financial Markets Association told the U.S. Court of Appeals for the 5th Circuit on Monday to deny the motions filed Thursday by AARP and state attorneys general to intervene in an appeals court ruling to vacate the Labor Department’s fiduciary rule.
Eugene Scalia, the lead Gibson, Dunn & Crutcher attorney who argued against Labor’s rule before the 5th Circuit and represents the plaintiffs which includes Chamber, SIFMA and FSI, said in a filing that AARP and the state attorneys general from California, Oregon and New York “have delayed until the last moment to file intervention motions to seek rehearing en banc,” adding that their delay “is unjustifiable” and should be denied.
AARP and the three state AGs, Scalia wrote, “have had ample opportunity to intervene in the multiple cases challenging the so-called ‘fiduciary rule’ in district courts around the country, in appeals in two other circuit courts, and in this appeal, which was decided by this court more than a month ago.”
AARP and the states, Scalia continued, have also “been on notice for more than a year that the government, under presidential direction, was re-evaluating its approach to the fiduciary rule.”
Monday is the deadline for the Labor Department to file an appeal.
The 5th Circuit should deny the motions to intervene because the requests fail to satisfy the standard for emergency relief, they lack standing and “are untimely and fail to satisfy the other standards for intervention on appeal,” Scalia said.
Scalia noted that “the 1% rate at which the Fifth Circuit rehears en banc appeals decided on the merits strongly suggests that rehearing (much less success on rehearing) is unlikely.”
Further, he argued that court’s decision “to vacate the fiduciary rule could soon be mooted by other regulatory action,” pointing to the Securities and Exchange Commission’s proposed rule, Regulation Best Interest, “that is intended to further the same goals.”