2016—Over the public dissenting votes of ten of its judges, the Ninth Circuit issues an order declining to grant rehearing en banc of a divided panel decision in Oregon Restaurant & Lodging Ass’n v. Perez.
This case provides a powerful illustration of how liberal judges and bureaucrats will engage in tag-team tactics to override unwelcome precedent and to invent legal obligations that assist favored constituencies. In brief: The unwelcome precedent here was a 2010 Ninth Circuit ruling that held that, by its plain language, a statutory restriction on a restaurant employer’s ability to require waiters to pool tips with non-tipped employees applied only to restaurants that did not pay waiters the minimum wage. Despite this holding, the Department of Labor in 2011 issued a regulation purporting to bar employers from requiring tip pools to include non-tipped employees, even if the employer was paying the tipped employees minimum wage. And in the divided panel decision in Oregon Restaurant, notorious liberal activist Harry Pregerson ruled that the Labor Department regulation was entitled to deference under the Chevron doctrine, even though the circuit precedent from 2010 held that the plain language of the statute meant otherwise.
2017—“The dogma lives loudly within you,” proclaims Senator Dianne Feinstein to Notre Dame law professor, and Seventh Circuit nominee, Amy Coney Barrett. Feinstein’s display of anti-Catholic bigotry in this comment and other questions earns widespread condemnation, including from liberals such as Princeton president Christopher Eisgruber and Harvard law professor Noah Feldman.
2022—A Ninth Circuit panel rules in Tingley v. Ferguson that therapeutic speech is non-speech conduct that is protected only by rational-basis review, and, on that basis, holds that a Washington statute that prohibits so-called “conversion therapy” counseling for minors does not violate the First Amendment.
Objecting months later to the Ninth Circuit’s denial of rehearing en banc, Judge O’Scannlain (joined by three of his colleagues) will observe that the panel ruling relied on a circuit precedent that the Supreme Court had “criticized … by name” in NIFLA v. Becerra (2018) and that is “no longer viable.”
2024—A divided panel of the Ninth Circuit rules (in Watanabe v. Derr) that a federal prisoner who alleged that prison officials were deliberately indifferent to his medical needs could pursue a damages claim against those officials. Judge Richard Paez, joined by Judge Lucy Koh, holds that the implied damages remedy that the Supreme Court recognized in its 1971 ruling in Bivens v. Six Unknown Named Agents applies.
In dissenting from the Ninth Circuit’s refusal to rehear the case en banc, Judge Ryan Nelson observes that until the panel’s ruling, “even the Ninth Circuit—which has become famous for repeatedly ignoring the Supreme Court on Bivens questions—seemed to get the message” that Bivens claims are strongly disfavored.” But the panel’s ruling “reverts to a sad time in our court’s bygone history where we breathed life into Bivens—again and again—even when the Supreme Court told us to stop.”