Labor Department headquarters in Washington. (Photo: Mike Scarcella/ALM)

President Donald Trump announced via Twitter late Thursday that he plans to nominate Eugene Scalia as the new Labor secretary.

Scalia, the lead Gibson Dunn attorney who argued against Labor's fiduciary rule before the U.S. Court of Appeals for the 5th Circuit, which vacated the rule last June, is a son of deceased Supreme Court Justice Antonin Scalia.

Scalia served as Labor's solicitor during the George W. Bush administration, and is now a partner in the Washington office of Gibson, Dunn & Crutcher.

At Gibson Dunn, he co-chairs the firm's Administrative Law and Regulatory Practice Group and is a member of its Labor and Employment Practice Group.

He represented nine plaintiffs, including the U.S. Chamber of Commerce, the Securities Industry and Financial Markets Association and the Financial Services Institute, in the case brought in a Texas court against Labor's fiduciary rule.

Scalia told BenefitsPRO's sister site ThinkAdvisor last March that the fiduciary issue “is a matter that ought to be addressed by the SEC; Dodd-Frank made clear that the question of a uniform fiduciary standard is under the SEC's purview.”

Trump said on Twitter that “Gene has led a life of great success in the legal and labor field and is highly respected not only as a lawyer, but as a lawyer with great experience….”

Embattled Labor Secretary Alexander Acosta resigned his post Friday. Patrick Pizzella, Acosta's deputy, was appointed to the acting secretary post the same day.

ERISA attorneys questioned whether Acosta's departure would delay a fiduciary rule release. Joshua Lichtenstein, a partner at Ropes & Gray in New York who focuses on ERISA and employee benefits, told ThinkAdvisor that a fiduciary rule release by Labor now hinges on “how much authority is Pizzella going to feel that he has.” An acting secretary's “preference is to defer a rulemaking to the secretary.”

As we move into an election year, confirmation of an appointee to fill the Labor secretary seat will be more challenging, Lichtenstein said.

Part of making Regulation Best Interest and the SEC's advice-standards package “easier and more harmonious is to also have coordination, like a streamlined exemption under ERISA” coming out of Labor, Lichtenstein said. “It will be a significant benefit to market participants to have [such] guidance.”

Instant Insights /

Trump to nominate Eugene Scalia as new Labor secretary

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