Oregon Restaurant and Lodging v. Thomas Perez
Opinion
Lead Opinion
Dissent by Judge O’SCANNLAIN
ORDER
Judges Pregerson and Owens have voted to deny the petition for panel rehearing. Judge Owens has voted to deny the petition for rehearing en banc,, and Judge Pre-gerson has so recommended. Judge N.R. Smith has voted to grant the petition for panel rehearing and petition for rehearing en banc.
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the , matter en banc. The matter failed to receive a majority of votes of the nonrecused active judges *356 in favor of en banc consideration. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehearing en banc are - DENIED.
The order filed on April 1, 2016 denying rehearing in Cesarz v. Wynn Las Vegas is hereby amended to reflect this subsequent en banc activity, including the dissent from denial of rehearing.
Dissenting Opinion
O'Scannlain, J.
dissenting from the denial of rehearing en banc:
Our court today rejects the most elemental teaching of administrative law: agencies exercise whatever powers they possess because — and only because — such powers have been delegated to them by Congress. Flouting that first principle, the panel majority equates a statute's “silence” with ah agency’s invitation to regulate, thereby reaching the startling conclusion that the Department of Labor can prohibit any workplace practice Congress has not “unambiguously and categorically protected” through positive law. The dissenting opinion had it right; the panel majority’s extravagant theory is more than the Constitution will bear. And it is more than our own precedents will allow. Because the panel majority reads our precedents out of existence, and opens not one, but two circuit splits in the process, I respectfully dissent from our refusal to rehear these consolidated cases en banc. . .
I
A
Here is a brief overview of the statutory and regulatory landscape. The Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., sets a minimum wage employers must pay their employees, id. § 206(a). Employers who have “tipped employee[s]” can…
Opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OREGON RESTAURANT AND No. 13-35765 LODGING ASSOCIATION, a non-profit Oregon corporation; WASHINGTON D.C. No. RESTAURANT ASSOCIATION, a non- 3:12-cv-01261- profit Washington corporation; MO
ALASKA CABARET, HOTEL,
RESTAURANT & RETAILERS
ASSOCIATION, a non-profit Alaska corporation; NATIONAL RESTAURANT ASSOCIATION, a non- profit Illinois corporation; DAVIS STREET TAVERN LLC, an Oregon limited liability company; SUSAN PONTON, an individual, Plaintiffs-Appellees,
v.
THOMAS PEREZ, in his official capacity as Secretary of the U.S. Department of Labor; LAURA FORTMAN, in her official capacity as Deputy Administrator of the U.S. Department of Labor; U.S.
DEPARTMENT OF LABOR,
Defendants-Appellants. OREGON REST. & LODGING ASS’N V. PEREZ
JOSEPH CESARZ; QUY NGOC TANG, No. 14-15243 individually and on behalf of all others similarly situated, and all D.C. No. persons whose names are set forth in 2:13-cv-00109- Exhibit A to the First Amended RCJ-CWH Complaint, Plaintiffs-Appellants,
ORDER
v.