5th Circuit Again Denies States' Intervention in DOL Fiduciary Ruling

The John Minor Wisdom courthouse, home of the 5th Circuit, in March 2005.

The U.S. Court of Appeals for the 5th Circuit denied once again on Tuesday the May 17 request made by state attorneys general from California, Oregon and New York that the court reconsider its May 2 refusal to allow them to intervene after the court vacated the Department of Labor's fiduciary rule.

"This panel previously denied the states of California, New York and Oregon's motion to intervene and file a rehearing en banc," the court said Tuesday. "The panel has considered the motion for reconsideration. IT IS ORDERED that the motion is DENIED."

"The federal government is no longer pursuing this appeal," the state AGs wrote in their 24-page filing on May 17.

The state AGs had argued that "given that posture, the exceptional importance of the issues, and the grave harm the states will suffer as a result of the panel opinion — billions of dollars in lost retirement income to their residents and tens of millions of dollars in lost tax revenue — the states respectfully request that the court reconsider its decision."

AARP along with the state attorneys general filed motions on April 26 to intervene in the 5th Circuit appeals court ruling to vacate Labor's fiduciary rule.

The rule is still effective until the the 5th Circuit issues its mandate to vacate the rule, David Kaleda, principal at Groom Law Group, said on May 10 at the Practising Law Institute's Fiduciary Investment Advice 2018 event in New York.

The court had yet to issue the mandate as of Tuesday afternoon.

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