Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “5 Questions as 5th Circ. Revives Attack on Min. Wage Rule,” by Jon Steingart. (Read the full version – subscription required.)

Following is an excerpt:

The Fifth Circuit's finding that a U.S. Department of Labor minimum wage rule has caused irreparable harm to restaurants by imposing $177 million in annual compliance costs is likely to be overshadowed by an upcoming ruling where the price tag isn't a factor, attorneys told Law360. … However, the case in the district court isn't in the same posture as it was when Judge Pitman denied the injunction in February 2022. For one thing, it's before a different judge, after Judge Pitman reassigned the case in October.

Reassigning a matter is a routine maneuver that's often done to balance judges' case loads but brings mystery about how the new presider views the dispute. Judge Pitman was named to the bench by former President Barack Obama, but he reassigned the case to U.S. District Judge David Ezra, an appointee of former President Ronald Reagan.

When the injunction issue returns to the lower court, it will take a spot alongside motions for summary judgment the parties filed after Judge Pitman refused to enjoin the rule. The district court case was not paused while the appeal went forward, and the summary judgment motions have been waiting for a ruling since June.

Paul DeCamp, a member of Epstein Becker Green who represents the plaintiffs, told Law360 the delay hasn't dulled their desire to challenge the DOL rule.

"Now we go back to the district court and argue about the remaining preliminary injunction factors and also argue about summary judgment," he said. …

How does the Supreme Court play a role?

DeCamp said a case the Supreme Court agreed to hear May 1 could provide tailwinds for his clients' arguments.

In a fishing industry challenge to fees the National Oceanic and Atmospheric Administration charges shipowners, the justices agreed to hear a case that directly asks the court to overrule its 1984 precedent in Chevron USA Inc. v. Natural Resources Defense Council Inc. The Chevron decision is a seminal administrative law precedent that requires courts to defer to an agency's reasonable interpretation of how to apply a statute when the legislative language is ambiguous or silent.

Chevron deference has been the key doctrine courts have relied on to uphold DOL rules such as the one DeCamp's clients are challenging.

"If the court decides to overturn Chevron, then the entire framework for deferring to a regulation could go out the window," he said.

Does the new judge make a difference?

Judge Pitman said when he denied the injunction that he was "skeptical of plaintiffs' likelihood of success on the merits at this stage." But Judge Ezra hasn't yet issued any opinions in the case, and a Law360 review of his decisions since joining the bench in 1988 shows he has never opined on an attack on FLSA regulations.

DeCamp said Judge Pitman's remark in the ruling on the injunction and comments during a hearing on it suggest persuading him on remand would be an uphill climb. But appearing before Judge Ezra gives the plaintiffs a fresh start, according to DeCamp.

"I think that this new judge on the case will not necessarily feel constrained by those same views, particularly in light of the fact that the previous judge got reversed," he said. "At a minimum, I think we have a clean slate here."


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