We asked our general counsel what could happen with the Fiduciary Rule.

Here are some potential next steps for the Department of Labor’s case in the Fifth Circuit Court of Appeals.

Many questions remain about the fate of the Department of Labor’s Fiduciary Rule following the Fifth Circuit’s opinion vacating the rule on March 15, 2018. Is the rule dead? It’s not so simple. The answer to that question requires a deep understanding of Federal Rules of Appellate Procedure. But skip the law-school class, because this article will serve as your cheat sheet.

There are four different decisions for the government to make that will dictate the fate of the rule. Almost as important as understanding the decisions available is understanding the decision makers. The decision to appeal or seek a rehearing, as described below, rests with the Solicitor General’s office within the Department of Justice. This means that the individuals within the Department of Labor and the attorneys in charge of litigating the case in the Fifth Circuit will not be making the decision. This decision is made by the upper echelon of the attorney general’s office with likely input from the Trump Administration.

The opinion released by the Fifth Circuit was just that—an opinion—what should happen. Their opinion does not go into effect, meaning the Fiduciary Rule is vacated, until a mandate is issued. A mandate is simply a document that court files that states that the opinion of the court is now law and formally ends the appeal. A mandate issues seven days after the 45-day appellate period window closes. In this case, the government, as the losing party, must use this 45-day window to decide between the following options:

1. The government decides to seek a rehearing. A rehearing is a hearing where the case is heard a second time by the same judges. Litigants primarily ask for a rehearing in cases where the opinion omits or misstates a material fact or where the opinion makes a fundamental mistake of law. It is very rare for a court to grant a rehearing unless the court actually makes a mistake that the same judges would agree requires fixing. If a rehearing is granted, the Fiduciary Rule would likely remain in place until a new opinion is released. Key dates: the Government’s deadline to ask for a rehearing is April 30.

2. The government decides to seek a rehearing en banc. A rehearing en banc is where the case is reheard by every active judge in the Circuit—all 14. Appellate courts only grant these for issues of exceptional importance. A majority of the judges must agree to rehear the case. In this Fifth Circuit, this would require eight judges to agree to rehear the case. From the political perspective, nine of the Judges were appointed by Republican Presidents and five were appointed by Democratic Presidents. If viewed from the general lens that Republican appointees are less likely to view the Fiduciary Rule as a matter of exceptional importance, it is unlikely that an en banc hearing will be granted. A judge on the Fifth Circuit could also ask for a rehearing en banc on his or her own accord. But, the majority of the active judges must still agree. During the Fifth Circuit’s last term, 197 petitions for rehearing en bancs were filed and only two were granted. If a rehearing en banc is granted, the Fiduciary Rule would likely remain in place until the full court hears the case and a new opinion is released. Key dates: the Government’s deadline to ask for a rehearing en banc is April 30.

3. The government decides to appeal to the Supreme Court. The government could also decide to appeal to the United States Supreme Court. The government has 90 days from the opinion date to appeal to the Supreme Court—making their deadline June 13. If the government elects to go this route, it could also ask the Fifth Circuit to stay the opinion and keep the Fiduciary Rule in place while it appeals. But it must do so before the mandate issue. The likelihood of success of the Supreme Court taking a case is just two percent. Key dates: the Government must ask for a stay of the Fifth Circuit’s opinion by May 7 and must appeal to the Supreme Court by June 13.

4. The government decides to do nothing and let the Fiduciary Rule die. The government could elect to do nothing and let the Fiduciary Rule be vacated. In this scenario, the government would let the 45-day appellate window pass. The court would issue the mandate vacating the rule on May 7th and the rule would cease to exist. Key dates: the appellate window expires on April 30 and the mandate would issue on May 7th.


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