As we previously reported, in November 2016, a Texas District Court’s temporary restraining order halted implementation of the Obama administration’s Department of Labor (DOL) regulations that were set to expand overtime pay for many US workers starting in December 2016. The Obama administration’s Department of Justice (DOJ) appealed that order, and asked for expedited review by the Fifth Circuit Court of Appeals. However, shortly after President Trump’s inauguration, the DOJ – now under a new administration – asked the federal appeals court for a delay in the appeal process for an additional thirty days, until March 2, 2017, to file a brief in connection with the appeal. The DOJ argued the additional time would give the new administration the opportunity to determine its appeal strategy. Many assumed this signaled the Trump administration would not support the overtime regulations.
On February 21, 2017, the DOJ requested a second extension, this time of sixty days, until May 1, 2017, to submit its brief on appeal. As before, the DOJ explained to the court that this additional time will allow the Trump administration to finalize its position on the Obama administration’s proposed overtime regulations. The court is likely to grant the DOJ’s unopposed request for more time.
Delays in President Trump’s appointment of a new Secretary of Labor may be cause, in part, for this most recent extension request. Confirmation hearings are not yet scheduled for President Trump’s second nominee, Alexander Acosta, who the President nominated after the first nominee, Andrew Puzder, withdrew in the face of fierce opposition. (For more on Mr. Acosta’s nomination, please see our prior blog post here.) Meanwhile, the underlying litigation continues. The Texas district court is considering a motion to permanently enjoin the DOL overtime regulations. It is unclear whether the district court will rule on these motions while the government’s appeal of the temporary restraining order is pending. We will continue to update on further developments.