In a December 8, 2016 Order, the Fifth Circuit Court of Appeals granted the DOL’s request for expedited briefing of its appeal of the preliminary injunction issued by a district court judge that had enjoined the DOL from implementing its regulation raising the salary level for the white collar exemptions.  The Court even set a quicker briefing schedule than DOL had requested in its Motion.  The briefing schedule is as follows:

  • DOL’s opening brief is due by December 16, 2016.
  • Amicus briefs in support of the DOL are due on or before December 23, 2016.
  • Appellees’ response brief us due by January 17, 2017.
  • Amicus briefs in support of Appellees are due on or before January 24, 2017.
  • The DOL’s reply brief is due on or before January 31, 2017.

The Court further ordered that oral argument would be set for the first available sitting after the close of briefing on January 31, 2017.  Based on this schedule, the DOL’s Reply Brief is not due until after President-Elect Trump’s inauguration.  This means that in advance of this reply deadline, the DOL could withdraw its appeal. This schedule also guarantees that the new Trump Administration and/or the new Congress will at least have the opportunity to determine the fate of the salary basis increases before the Fifth Circuit issues a decision, though the timing will be tight.