9th Circuit

In The Ninth Circuit, Nobody Can Hear You Scream

Footnote. Of. The week!

By David Lat on September 08, 2016 1:06 pm
Judge Diarmuid F. O'Scannlain (via CSPAN)

Judge Diarmuid F. O’Scannlain (via CSPAN)

In case you missed it in the wake of the long holiday weekend, on Tuesday the Ninth Circuit denied rehearing en banc in Oregon Restaurant and Lodging Association v. Perez, an important administrative-law case relating to tip pools. Judge Diarmuid F. O’Scannlain dissented vigorously from the denial of en banc rehearing, pointing out that the panel opinion “reads our precedents out of existence, and opens not one, but two circuit splits in the process.”

Judge O’Scannlain (disclosure: my former boss) has a way with words, especially when ladling out the judicial sauce. Perhaps the juiciest part of the dissental — yes, “dissental” is a word — is this footnote, highlighted by Orrick partner Robert Loeb on Twitter:

https://twitter.com/BobLoeb/status/773210570992615424

I concur with Loeb’s fellow appellate lawyer, Raffi Melkonian:

Aren’t we all glad that footnotes aren’t just (or even principally) for citations?

Might SCOTUS ride to the rescue and reverse? It’s quite possible. As we’ve noted before, a dissental from a prominent conservative judge like Judge O’Scannlain or Judge Kozinski is the Ninth Circuit equivalent of “flashing the Bat Signal to the Supreme Court.” So stay tuned to this Bat Channel.

UPDATE (11:50 p.m.): Supreme Court vindication could come sooner rather than later. The issue raised in Oregon Restaurant and Lodging Association is the subject of the recently filed cert petition in Wynn Las Vegas, LLC v. Cesarz (decided by the same Ninth Circuit panel).

P.S. For additional interesting tidbits from Judge O’Scannlain’s pen (or keyboard), see this Federalist Society post, Judge O’Scannlain’s Tribute to Justice Scalia (discussing the judge’s recent opinion in United States v. McIntosh, regarding prosecutions of medical-marijuana businesses in the Ninth Circuit).

Oregon Rest. & Lodging Ass’n v. Perez: Order [U.S. Court of Appeals for the Ninth Circuit]
Ninth Circuit Declares Tip Pools Invalid Under FLSA [World of Employment / Stoel Rives LLP]
Judge O’Scannlain’s Tribute to Justice Scalia [Federalist Society]

Earlier: Benchslap Of The Day: Don’t You Dare Put Citations In The Footnotes

David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].