The dispute is about statutory interpretation and Chevron deference. Particularly as applied to circuit precedent.
Prompting a serious disagreement between Judges Pregerson and (Randy) Smith.
There's a prior Ninth Circuit opinion that says that a federal statute allows employers to do X.
But, after that decision, the Department of Labor issues a regulation that interprets that statute and says that employers cannot, in fact, do X -- that this practice indeed violates the statute.
Are employers now prohibited from doing X?
Judge Pregerson believes so. He, along with Judge Owens, says that the prior case didn't involve Chevron deference -- it merely was a straightforward (nondeferential) interpretation of the statute -- and after applying deference, the DOL's interpretation is a reasonable one, so that distinguishes the present case from the one before.
Judge Smith disagrees. He thinks that the prior case said that the statute was clear, and that if the law's clear, agency interpretations don't matter. Judge Smith also has some strong words for his colleagues, and begins his dissent by saying: "Colleagues, even if you don’t like circuit precedent, you
must follow it. Afterwards, you call the case en banc. You
cannot create your own contrary precedent."
Two competing visions.
P.S. - Not a good past ten days for Eugene Scalia, who argued the case for the Wynn Las Vegas. First, his father suddenly dies. Now, this.
