text:
Lanvin collaborates with Judith Leiber for a special bag collection
In FashionNews
DURING the spring-summer 2022 show in Paris, Lanvin debuted five exclusive bags in collaboration with Hungarian-American designer Judith Leiber. Highlighting two brands founded by strong, independent women who share the same love for creativity and fashion, the handbags bring the Houses together.
Taking the sensibility of Jeanne Lanvin's couture roots with the contemporary, dazzling craftsmanship of Judith Leiber, the five different styles were all hand-crafted by skilled experts who have carefully placed over 10,500 crystals for each special creation.
Lanvin x Judith Leiber
"It was an honour and a pleasure to work with the Lanvin team," says Jana Matheson, CCO of Judith Leiber Couture. "Our brands align perfectly with a love for craftsmanship, whimsical style, and a heritage that celebrates strong, cool women now and always".
The Flower Kitten Minaudiere pays homage to Armand-Albert Rateau's cat, while the Mother and Daughter Heart Minaudiere – available in red and purple – was designed to illustrate Lanvin's logo and the Shining Star Minaudiere is a direct link to the inspiration behind the SS22 collection, looking into a new found Lanvin galaxy.
Bruno Sialelli, creative director of Lanvin speaks about this collaboration, "The minaudiere is an integral part of Lanvin's iconography. It represents the idea of evening, of wanting to get dressed to go out. The minaudiere fits perfectly into the identity of Lanvin collections, with dresses and festive evening wear. They are a very beautiful and distinctive element".
Armand-Albert RateauBruno SialelliJana MathesonJudith LeiberLanvin
Burberry launches pop-up experience in Jeju Island, South Korea
Glass speaks to futuristic K-pop group Aespa
Louis Vuitton pop-up store opens in Harrods


I've been thinking a lot about IBS recently and researching it again. It's not because I'm hitting an age when I'm supposed to start talking incessantly about my bowels, but more because I never really do, talk about my bowels that is... Talking about your bowels doesn't tend to increase your friend numbers! The research is more to do with self-preservation.
Then it all changed. I contracted the worst bout of the winter vomiting virus in my life in the winter of 2012. I actually felt like my insides snapped. Sometimes I think they did. I woke up the next morning with my IBS playing up and assumed it'd all be back to normal in two or three days, it wasn't, and I'm still waiting... Every single day since winter 2012 has been marked by galloping indigestion, bloating (usually about 2 sizes over the course of a day), a feeling as if someone is sticking a red-hot poker right through the upper half of my stomach, lower back pain, muscle spasms in my intestine, an inability to go to the loo, exhaustion, need I go on? Interestingly, I recently discovered most sufferers can trace the beginning back to a viral/food poisoning episode.
The funny thing is - when you have these symptoms once a year, you take a sick day and lie in bed trying to get over them, but you can't do that when every day is a sick day, so I fully suspect those who suffer from IBS are probably amongst the workers who take the fewest sick days.
Anyway, I'm not looking for any miracle cures (unless anyone happens to have one) or sympathy. What I'm actually on to suggest is a change of name... You see irritable is just wrong - it's kind of like 'my baby's a little irritable today...' And that makes people think it is a minor inconvenience. If I had a pound for every doctor who has told me 'Don't worry, it's only IBS'... What sufferers actually need is a GP who happens to suffer from it! Irritable trivialises something that is actually quite difficult to live with. For starters, you can't wear clothes! That's a bit of a problem in a climate like Scotland. Anyone who thinks I tend to spend 85% of time in leggings because I think I have the figure for them, think again! Even the elastic in tights irritates my insides, so it's leggings all winter, dresses in the summer and pain whenever I have to dress formally for a business meeting. Then there's food - most self help books tell you to follow a low-FODMAP diet - ie eliminate these (see the lists with the reddish background) from your diet, ie eat as if you are a lactose intolerant coeliac sufferer who doesn't like spice, coffee or anything fried - that doesn't leave you with much scope! You also have to try to keep your stress levels low - it's not like my life has been in anyway stressful for the last decade, is it? (Did someone say Brexit?) It is physically and emotionally draining.
Or in fact, maybe we could drop the word 'bowel' from it too, then sufferers might set up self-help groups instead of assuming the subject should be taboo!
I've never actually used this emoji before, but it seems kind of appropriate!
Restored to his former glory - phew.
So there I was (last week, before the snow!) minding my own business in the shopping centre car park, stopped in a long line of maybe eight stationary vehicles waiting for the front car in the line to turn into their chosen parking space when I saw a black Ford Fiesta backing out of its space cautiously. Charlotte was in the passenger seat and she turned to me and said 'I don't think they have seen us, mum!' I had come to the same conclusion at the same moment so tooted my horn to alert the driver that my Fiat (and the other eight cars he had seemingly failed to notice) were at his back. I expected he'd stop at that point but instead he pressed his accelerator fully down to the floor and flew at the side of my stopped Chuggy at a speed I had never seen a car reverse at!
Charlotte screamed, expecting the side of the car to crush her two legs. (It didn't, thank goodness). Léon, who was in the seat behind her, shouted 'Woah!', and Anna who was behind me burst into tears. I stepped out the car to see Methuselah himself step out of the Ford. He looked a bit like you'd imagine Basil Fawlty's grandfather might have looked; tall, grey, gangly, open-mouthed in shock. I was gobsmacked. 'What did you just do to my daughter?!' came involuntarily from my mouth before I calmed down enough to ask him his details. He looked surprised and managed 'I got mixed up between my pedals' before his wife ranted that he only had two given it was an automatic, so how had he managed to floor the accelerator trying to do an emergency stop!?
Anyway, he gave me his details, admitted all liability (in front of the witnesses) and trundled off (banished to the passenger seat) while I went about my shopping.
Chuggy's away now getting a new door and wing and I'm playing about with my free Nissan Juke hire car - I quite fancy trading the Ipsilon in for one of them, it's very nippy as well as feeling safe and heavy.
Interestingly, when I took my Chuggy to the coach builders for an assessment and a quote, the receptionist who was reading through my case told me that over the past decade she has seen a huge increase in the number of older pensioners in my area who run into other cars and then, because they are rather wealthy and they do not want the DVLA alerted to their little driving misdemeanours, come with the person they have hit and offer to pay their repairs and courtesy car cash so they do not need to go through their insurance. Basically they are paying to insure their car because it is illegal not to, but not reporting crashes so they don't lose their licences.
My elderly gentleman has gone through his insurance so will likely have to prove he's still trustworthy behind a wheel (I would say that if a pedestrian had been walking behind his car when he reversed, he'd easily have broken their pelvis or legs at the speed he hit me), but it is alarming to think the there are many unroadworthy drivers out there who are bypassing the system so they can keep their cars long beyond a point when they maybe should.
I fully realise that if you drive everywhere, losing that right is terrifying and isolating, but is it really as terrifying as potentially crushing someone's child against another car?
It occurred to me the other day when I was mentioning Charlotte being a real 'millennium baby' that those of you who didn't have a baby that week might not have been fully aware of the ridiculous hoo-ha surrounding the millennium bug!
And finally, one that wasn't technology related: Be prepared to wait as there would no doubt be a rush given the huge number of millennium babies predicted across the world!
I was somewhat bemused and not overly worried given she was not my first baby. I went into labour at lunchtime on 3-1-2000, so they'd had fully two days plus to sort out any glitches. I made my own way to hospital (I lived five minutes away) at 8pm and it was dead. There were no other mums in labour that I could see, the lights were on, even the fairy lights on a tiny, scabby Xmas tree in the corner of the deserted ward seemed to be working. The radiators were hot, the fridges on and it was pretty much a repeat of my stay when I had had Marcel two years earlier! I was the only one in my ward as the great millennium rush hadn't materialised either. Definitely a bit of an anticlimax!
The baby photographer presented everyone born that week with one of these special frames!
The 'Millennium baby' has turned 18!
How old does that statement make you feel? Wasn't the millennium new year about five years ago?
It has actually been an interesting exercise. If you had asked me an hour ago, without showing me any photos, I would have said that Charlotte has not changed at all since about 2009, because she has not significantly changed her hair since then, but when I look at the photos side by side, she has actually changed quite a bit.
It will be interesting to see what the next few years have in store for her as she moves on to university. Things are still up in the air as she hasn't fully decided what or where to study, but watch this space!


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Lafayette Home Hospital was a 270-bed medical center in Lafayette, Indiana, United States, owned by the not-for-profit Franciscan Health, a division of Sisters of St. Francis Health Services, Inc.  The facility ceased all medical services on February 25, 2010.

History

Founding
Home Hospital originally began in a house at the corner of 16th and Howell streets, adjacent to the current Franciscan Health Lafayette Central campus. It was known as "The Home for the Friendless," a place where care was provided for homeless residents. At their board meeting in November 1894, the board voted to use the home and all of its belongings as a hospital, as many other community organizations began serving homeless and destitute residents. They voted to rename the facility, "City Hospital," which never caught on with residents, who kept going back to the name "Home." On June 16, 1895, Lafayette Home Hospital was officially incorporated as a non-profit entity with 21 local residents serving on the board of directors. As part of the group's fundraising activities, they offered to name the hospital after any local benefactors. "If any generous and public spirited lady or gentleman wishes to hand his or her name down to posterity as a benefactor or to erect a monument that will be lasting and grand by contributing sufficient money to build the proposed institution, it will be possible to change the name, so as to honor the donor," was one report in the Lafayette Journal & Courier from June 1895. (A date of July 22, 1895 appears on the paperwork approved by the Secretary of State.) While no benefactors stepped forward to change the name, several community members and groups stepped forward to provide supplies, funds and eventually land for Home Hospital.

According to the Journal & Courier in a special 1945 edition about Home Hospital, the first patient was Miss Mary Smith – who later married Robert Orr, who lived at 923 N. 8th St. "On the morning of Mrs. Orr's operation, she recalls that all patients ate together, after which the dining room table was cleared for action and the surgery performed. The hospital then is said to have had one nurse, an assistant who also kept house, and a cook. There was room for eight patients and the place was like a home, with the staff and patients forming one happy family."

As their services grew, the board was looking for a new location. After much debate, thoughts of building at Seventh and Union streets were abandoned. In early 1898, a Hospital Ladies' Aid Society was established as a way to continue to raise funds for various needs at the hospital. In October 1898, the board purchased a half block of land at 24th and South streets – 3 acres of land – across from Columbian Park, which many people called "out in the country." The land included a farm house, which would serve as the new hospital. The purchase was secured in part by the sale of the old property.

In 1901, one of the first benefactors for Home Hospital stepped forward with a gift. John P. Kile, a retired merchant from Lafayette, donated funds and built a new two-story brick building in memory of his wife Elizabeth. The building would be known as the Kile Building, but the organization would still continue to be known as Home Hospital. The new building would have rooms for 24 patients and administration. In December 1905, a third floor was added onto the Kile Building. Mrs. Charles B. Stuart, one of the managers of the hospital, gave Home Hospital an early Christmas gift by donating the rest of the block to the hospital and now its property extended to 25th Street. Throughout the next 40 years, the community continued to provide donations that enabled Home Hospital to expand, both in facilities and property. The Kile Building was continually used until it was demolished in 1981.

Expansion
In the mid 1950s, a group of community leaders gathered and met with both administration and boards of Home Hospital and St. Elizabeth to plan for the future. After about three years of study, the group made its intentions known on April 15, 1959: to provide funding to build 100 beds at Home Hospital and 100 beds at St. Elizabeth, as well as provide equipment and space for ancillary services. The group launched a campaign called HEALTH: Help Enlarge Adequately Lafayette's Two Hospitals.

According to the April 16, 1959 edition of the Journal and Courier, the Tippecanoe County Medical Society recognized "the critical shortage of hospital facilities in Greater Lafayette, Tippecanoe County and the surrounding area, sought the assistance of the Greater Lafayette Chamber of Commerce in obtaining expansion of Home and St. Elizabeth Hospitals." A report was issued by the HEALTH committee by Dr. Herman Smith and Associates – a hospital consultant – emphasizing the need for improvement and expansion at both facilities. The reason why the hospitals needed to be modernized: expansion and growth in the community, especially with new industries and a growing student population at Purdue. The more than $3 million campaign was launched with four goals in mind: to address the existing shortage of hospital beds; the greater demand for beds and other hospital facilities that would accompany population growth; the need for replacement of outmoded facilities; and the improvements necessary for the hospitals to keep pace with the continuing advancements in medical science. The HEALTH campaign went to build a new four-story wing for 100 beds, a new lobby and administrative area, new emergency department, physical medicine department, central medicine supply department, X-ray suite, operating rooms and laboratories at Home Hospital.

The 1970s brought additional advancements in technology and services to Home Hospital. The hospital, which had 365 beds, 35 bassinets and nine isolettes, celebrated the launch of the neonatal intensive care unit in July 1975. Other happenings from 1975 included the Auxiliary providing $59,242.96 to Home Hospital, a bulk of that from the Home Hospital Fair, the gift shop and other events. Their main goal was to complete their pledge of $500,000 for the building fund. The report also included that "Home Hospital's Red Coats, the first all-male organization of hospital volunteers in the world, celebrated their 10th anniversary."

Construction and changes in services continued through the 1980s and 1990s. Home Hospital continued to experience patient growth. The result: the addition of the new front lobby, patient rooms and ancillary service areas, parking garage and other areas. In 1984, a corporate restructuring created a family of corporations united by a single goal: doing whatever was necessary to maintain Home Hospital as a vibrant, community-owned hospital. North Central Health Services (NCHS) became the new name and parent company of Home Hospital and several other ventures. In 1990, in preparing for its 100th anniversary as Home Hospital, it launched a massive remodeling and modernization project. On September 26, 1997, Home Hospital and St. Elizabeth officials announced that the two entities intended to combine the governance and management in a new corporation. The unified hospital system – originally called Greater Lafayette Health Services (GLHS) – would work to be more efficient and more responsive to those who purchase and consume health care. Some of the benefits of creating the new system would be to eliminate waste and reduce the duplication of expensive technology. They officially merged on January 1, 1999.

Closure
Greater Lafayette Health Services announced in late 2005 a plan to close Home Hospital, and construct a new facility to replace it on the city's southeast side, with St. Elizabeth Medical Center remaining open for critical patient care. Work on the new facility commenced in late 2006, with occupation planned to occur in December 2009. Lafayette Home Hospital closed in February 2010; the property was sold in 2012,
 to an Indianapolis based group of investors, Columbian Park Redevelopment LLC. The building was demolished in 2013.

See also
 Franciscan Health Lafayette East

References

External links
 https://www.franciscanhealth.org/healthcare-facilities/franciscan-health-lafayette-central-61
 https://www.dailyherald.com/amp-article/20111008/news/111009841/

Hospitals in Indiana
Buildings and structures in Lafayette, Indiana
Buildings and structures demolished in 2013
Demolished buildings and structures in Indiana

redpajama_set_name: RedPajamaWikipedia


With this module, in phase one, the users, Public Transportation passengers will be able to Track Route Taxis assigned closest route to the passenger location and are within a pre-defined radius. Also provide the approximate distance and time of arrival for the APP selected taxis. There are over 40 routes so the route will need to be the closest one to the passenger location.
The module needs to allow for user / driver registration and driver approvals. Also will need to have a way to create new routes and be able to modify existing ones., There are over 40 so far. The module will only provide the display to users. There is no interactions at all between drivers and passengers.


There are three generations of WA. First one from 1989.-1996. That one was just like all other group in Croatia during the war. We even had some members of BBB in the crew then. Numbers then were around 50. So the group was pretty much nationalized with a lot of Croatia flags.
Around 2006 the third generation started its path, with a lot of punks, skins and other alternative scene members. Then we started to send Antifa messages. Soon local AFA people started to go to the stands, So now we are a group of around 35 and we support our own fan owned club called ZAGREB 041. Club is founded on 01.12.2014 and is comlitly fan owned and run and it plays in croatia 7th division. First and only antifa and antira club in Croatia and former Yugoslavia.


The FDA granted priority review to the Bristol-Myers' (BMY) label expansion application for Empliciti seeking approval of the drug in combination with Pomalyst in multiple myeloma patients who are resistant to Revlimid.
Bristol-Myers Squibb Company BMY announced that the FDA has accepted the supplemental Biologics License Application (sBLA) seeking label expansion of multiple myeloma drug, Empliciti (elotuzumab). The sBLA seeks approval of Empliciti in combination with Celgene's CELG Pomalyst (pomalidomide) and low-dose dexamethasone for the treatment of patients with relapsed/refractory multiple myeloma (r/rMM) in second- or later-line settings.
The sBLA was granted priority review by the FDA. A decision is expected on Dec 27, 2018.
Empliciti is already approved in combination with Celgene's Revlimid (lenalidomide) and dexamethasone for the treatment of multiple myeloma in patients who have received one to three prior therapies.
The sBLA included data from phase II study – ELOQUENT-3 – which evaluated the Empliciti combination regimen in patients who have received at least two prior therapies or whose disease has relapsed or is resistant to Revlimid and a proteasome inhibitor.
Data from the study showed that patients treated with Empliciti plus Pomalyst and dexamethasone (EPd) had a 46% reduction in risk of disease progression compared to patients receiving only Pomalyst and dexamethasone (Pd). The progression free survival ("PFS") in EPd arm was 10.3 months compared with 4.7 months in the Pd arm.
Bristol-Myers commercializes Empliciti in collaboration with AbbVie ABBV. The drug generated sales of $119 million in the first half of 2018. However, the combination therapy, if approved, can provide an important treatment option for patients with relapsed/refractory multiple myeloma whose disease has progressed after treatment with lenalidomide and a proteasome inhibitor.
Meanwhile, the company's largest cancer drug, Opdivo, continues to excel and expand in new indications and geographies. In June, Opdivo received approval as the first PD-1 inhibitor in China for the treatment of locally advanced or metastatic non-small cell lung cancer after prior platinum-based chemotherapy in adult patients without EGFR or ALK genomic tumor aberrations. However, the drug faces stiff competition globally from Merck's MRK PD-L1 inhibitor, Keytruda.
Bristol-Myers currently has a Zacks Rank #1 (Strong Buy). You can see the complete list of today's Zacks #1 Rank stocks here.


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Can US visa reform foil Rouhani's PMD victory?
16 December 2015 20:16 (UTC+04:00)
Baku, Azerbaijan, Dec. 16
By Farhad Daneshvar - Trend:
Iranian President Hassan Rouhani's address to the nation Dec. 16 on the closure of the PMD conveyed a special message to his voters and critics.
Rouhani wanted to say he fulfilled his electoral promise on the country's nuclear program as the International Atomic Energy Agency's (IAEA) Board of Governors adopted a resolution closing the PMD (possible military dimensions to Tehran's nuclear program) file - a move that ends a 12-year probe into Tehran's nuclear program, confirming that Iran's nuclear activity is peaceful.
Saying the international sanctions on Tehran, imposed by the West over Iran's nuclear program, will be lifted within a couple of weeks, he urged international companies, Iranians residing abroad, and both domestic and foreign entrepreneurs to engage in projects to revive Iran's economy.
The next step for the moderate president after removal of the sanctions will be "luring" foreign investments to boost the country's ailing economy and aging industry.
Meanwhile, some observers still believe it will not be easy for Rouhani to draw foreigners' attention as the ties between Tehran and Washington haven't been normalized yet.
The normalization of these ties, as many believe, can be further hampered by the US Visa Waiver Program, which imposes some restrictions on foreigners intending to visit the US.
"The HR 158 Bill [the US Visa Waiver Program], which is now a part of an omnibus budget bill considered by the US congress, is partly designed to prevent Iran from benefiting from the JCPOA [the nuclear deal]," Hooshang Amirahmadi, the president of American Iranian Council, believes.
Further speaking on the issue, Amirahmadi told Trend Dec. 16 that the move will indeed impact Iran's economy.
"Note that the Bill, which will almost certainly be enacted into law, will make anyone traveling to Iran a subject to the US Visa requirement," he said. "That includes citizens of many European countries, Japan and South Korea, who currently can travel to the US without a prior visa."
"Even Iranian-Americans, who the Iranian government wanted to attract, will be detracted from traveling to Iran. Discouraging so many people around the world from traveling to Iran will have a serious negative effect on Iranian economy," he explained.
Aiming at preventing possible terror attacks, the US House of Representatives voted in favor of the bill bringing changes to the Visa Waiver Program, which would discourage lots of international investors and firms from visiting the Islamic Republic.
Rouhani pledges to maintain economy
During his electoral campaign Hassan Rouhani vowed to improve the country's ailing economy, which has fatally weakened following the West's decision to impose sever sanctions on Tehran's economy and industry over the country's nuclear program.
Since 2002, when Iran's nuclear program became public, the Western states and international organizations imposed sanctions against Tehran justifying the move as an attempt aimed at preventing the Islamic Republic from developing a nuclear weapon.
Iran said its nuclear program had no military dimensions, stressing that its nuclear activities are peaceful. However, the sanctions were intensified in mid-2012 targeting Iran's economy and industry, particularly its oil and gas industry, which is the main source of income for the country.
In order to settle the nuclear issue, Rouhani, for the first time over the last three decades of the Islamic Republic's history, announced his brave decision on conducting direct talks with the US. The talks eventually brought a landmark nuclear deal between Tehran and the world powers in July that would scale down Iran's nuclear program in exchange for the lifting of the sanctions.
Victory vs. failure
The IAEA Board of Governors' Dec. 15 resolution is considered a key step towards lifting the sanctions on Iran.
Iran expects that within the coming month it will be able to trade through international financial systems, receive $100 billion of its frozen assets, as well as resume oil trade on international markets.
"In the wake of the declining oil prices, the Bill [US Visa Waiver Program] will prove disastrous for Iran and Iranians," said Hooshang Amirahmadi.
"I don't believe that even a victory for Rouhani, moderates or reformists in the next parliamentary election this coming February in Iran will be of any help to US-Iran relations as long as the supreme leader and his hard-line supporters remain opposed to the US, insist in keeping Assad in power, remain hostile to Israel, and support Hezbollah and the Palestinians," Amirahmadi concluded.
Farhad Daneshvar is Trend Agency's staff journalist, follow him on Twitter: @farhad_danesh
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redpajama_set_name: RedPajamaCommonCrawl


Since man's existence began, this planet has provided everything needed for our species to thrive—the air, water, and soil all play a key role in our survival. But our species hasn't always been as kind to our planet as it has been to us.
The neglect and abuse we've shown our planet was recognized in 1970 with the first Earth Day being held in support of environmental protection. Since then, Earth Day has become an annual event held on April 22 each year.
While it's nice to have that annual reminder we should be kind to our planet, we should be making friends with nature year round, as New York Times bestselling author Ilchi Lee discusses in his book, I've Decided to Live 120 Years: The Ancient Secret to Longevity, Vitality, and Life Transformation.
Why Should We Make Nature a Part of Our Lives?
Nature can bring balance to our lives and being in it can be a great reality check for us. It reminds us to take a step back from our often busy and self-absorbed lives.
When you're surrounded by ancient forests, mountains, and the oceans on a planet that is more than four billion years old, it's easy to feel a little silly for being so obsessed with your own troubles and worries. It reminds us of how short our lives truly are in the grand scheme of things.
But even more than that, it's a magnificent reminder that we're actually a part of nature. We depend on it for our very existence. The sooner we accept that, the sooner we can start developing our relationship with nature and give it the respect it deserves.
What Are Some of the Benefits of Being in Nature?
Being in nature can benefit our health on so many levels. From a spiritual standpoint, it does us a tremendous amount of good. Wondering about what's out there and thinking about all the people who have stared at the same scenery we have throughout the centuries can be inspiring.
Simply meditating while sitting near the ocean or while gazing at a mountain in the distance can open our minds. Going for a walk in the forest can help us discover truths about ourselves and the paths that we're on. While many of our everyday activities are meant to distract and entertain us, like watching television, playing a computer game, and going out for an evening meal, being in nature gives us a chance to drop all pretenses and reflect on where we're at in life.
In our everyday lives, nature can help us unwind and destress. A quick walk can free your mind that's cluttered with the long to-do list you have waiting for you at home or the impending deadlines you have at work. Feeling the warm sun on your skin is an instant pick-me-up and will let you soak up some much-needed Vitamin D, which is a crucial part of a healthy immune system.
All your senses are engaged by being in nature—your ears will pick up the sounds of birds singing, waves crashing, and animal sounds. Your eyes will be overwhelmed by the sheer beauty you see—the mountains, trees, and bodies of water are amazing views to behold. Your nose will appreciate the smells of the trees, water, and flowers.
In our busy lives though, it's not always possible to be in nature as much as you'd like to. When life is simply too busy for you to even stop by a small park to get a quick nature fix, there are cheats you can do until your schedule unclutters a bit.
You can listen to nature CDs meant to provide you with the necessary tools for meditation, such as Nature Heals and Nature Awakens. You can do it from your own home on a rainy day, or you can indulge your mind and spirituality while you're in your car on your daily commute to the office.
No matter how you choose to incorporate nature into your life, make it a habit, not a rarity. You'll feel more relaxed, centered, and in tune with yourself and the world around you.
Unplug those devices and turn off the television so you can use your eyes, ears, nose, and your heart to reclaim your sense of purpose and belonging.


Bubbly Green Witches' Brew Cupcakes! Perfect for Halloween!
Have you ever seen a cupcake that is more fun than these Witches' Brew Cupcakes?! These cupcakes are made to resemble a black cauldron full of green bubbly witches' brew! I know that any witch, child, or grown up will be thrilled to find these set out for dessert! I can't think of a better treat to have for a Halloween party!
To create the bubbles I used different sizes of sprinkles and these green gumballs that I found! You could really use any varying size of large sprinkles to create the same effect.
The frosting is what takes center stage here! This frosting is so light and fluffy it's slightly ridiculous. I've never had such airy frosting before. Perfect for piping on piles of bubbly witches' brew!
See how easy it is to decorate these cupcakes? Not to mention how super cute is that little animation I put together for you!
You can also pile on the frosting to make it even MORE bubbly! Hmm..more frosting?? Ok!
Make sure you head to Cupcakes & Kale Chips by clicking HERE to snag the recipe!
These cupcakes are the cutest! So fun and perfect for Halloween!


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Justia › US Law › Case Law › Federal Courts › Courts of Appeals › Ninth Circuit › 2016 › Oregon Rest. & Lodging Ass'n v. Perez
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Oregon Rest. & Lodging Ass'n v. Perez, No. 13-35765 (9th Cir. 2016)
Justia Opinion Summary
Employer-Appellees required their employees to participate in tip pools. Unlike the tip pools contemplated by section 203(m) of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. 203(m), however, these tip pools were comprised of both customarily tipped employees and non-customarily tipped employees. In 2010, the court held in Cumbie v. Woody Woo, Inc. that this type of tip pooling arrangement does not violate section 203(m), because section 203(m) was silent as to employers who do not take a tip credit. In 2011, shortly after Cumbie was decided, the DOL promulgated a formal rule that extended the tip pool restrictions of section 203(m) to all employers, not just those who take a tip credit. The United States District Court for the District of Oregon held that Cumbie foreclosed the DOL's ability to promulgate the 2011 rule and that the 2011 rule was invalid because it was contrary to Congress's clear intent. The United States District Court for the District of Nevada followed suit. Applying Chevron, the court concluded that Congress has not addressed the question at issue because section 203(m) is silent as to the tip pooling practices of employers who do not take a tip credit. There is no convincing evidence that Congress's silence, in this context, means anything other than a refusal to tie the agency's hands. In exercising its discretion to regulate, the DOL promulgated a rule that is consistent with the FLSA's language, legislative history, and purpose. Having decided that the regulation withstands Chevron review, the court reversed both judgments and remanded for further proceedings.
Court Description: Fair Labor Standards Act. The panel reversed the district courts' decisions in favor of employers, and held that Cumbie v. Woody Woo, Inc., 596 F.3d 577 (9th Cir. 2010), did not foreclose the Department of Labor's ability to promulgate subsequently a formal rule that extended the tip pooling restrictions of Section 203(m) of the Fair Labor Standards Act of 1938 ("FLSA"); and remanded for further proceedings. Under 29 U.S.C. § 203(m), an employer may fulfill part of its hourly minimum wage obligation to a tipped employee with the employee's tips by taking a tip credit; and the tip pool is valid if it is comprised exclusively of employees who are "customarily and regularly" tipped. In 2010, in Cumbie, the court held that a tip pooling arrangement comprised of both customarily tipped employees and non-customarily tipped employees did not violate section 203(m) of the FLSA because section 203(m) was silent as to employers who do not take a tip credit. In 2011, the Department of Labor promulgated a formal rule that extended the tip pool 4 OREGON REST. & LODGING ASS'N V. PEREZ restrictions of section 203(m) to all employers, not just to those who take a tip credit. 76 Fed. Reg. 18,832, 18,841–42 (April 5, 2011). The district courts in these cases held that Cumbie foreclosed the Department of Labor's ability to promulgate the 2011 rule and that the 2011 rule was invalid because it was contrary to Congress's clear intent. The panel held that the Department of Labor may regulate the tip pooling practices of employers who do not take a tip credit. The panel disagreed with the district courts' applications of Cumbie and their analyses under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). The panel held that FLSA section 203(m)'s clear silence as to employers who do not take a tip credit left room for the Department of Labor to promulgate the 2011 rule. The panel concluded that step one of the Chevron analysis was satisfied. At Chevron step two, the panel concluded that the Department of Labor's interpretation in the 2011 rule was reasonable. The panel held that the Department of Labor's regulation withstood Chevron review. Judge N.R. Smith dissented because he would hold that the cases are controlled by the holding in Cumbie, and he would affirm the district courts. OREGON REST. & LODGING ASS'N V. PEREZ 5
The court issued a subsequent related opinion or order on September 6, 2016.
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT OREGON RESTAURANT AND LODGING ASSOCIATION, a non-profit Oregon corporation; WASHINGTON RESTAURANT ASSOCIATION, a nonprofit Washington corporation; ALASKA CABARET, HOTEL, RESTAURANT & RETAILERS ASSOCIATION, a non-profit Alaska corporation; NATIONAL RESTAURANT ASSOCIATION, a nonprofit 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. No. 13-35765 D.C. No. 3:12-cv-01261MO 2 OREGON REST. & LODGING ASS'N V. PEREZ Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding JOSEPH CESARZ; QUY NGOC TANG, individually and on behalf of all others similarly situated, and all persons whose names are set forth in Exhibit A to the First Amended Complaint, Plaintiffs-Appellants, No. 14-15243 D.C. No. 2:13-cv-00109RCJ-CWH OPINION v. WYNN LAS VEGAS, LLC; ANDREW PASCAL; STEVE WYNN, Defendants-Appellees. Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding Argued and Submitted July 10, 2015—Portland, Oregon* Filed February 23, 2016 * We heard oral argument in these two cases together, and we now consolidate them for disposition. See Fed. R. App. P. 3(b)(2); Mattos v. Agarano, 661 F.3d 433, 436 n.1 (9th Cir. 2011) (en banc). OREGON REST. & LODGING ASS'N V. PEREZ 3 Before: Harry Pregerson, N. Randy Smith, and John B. Owens, Circuit Judges. Opinion by Judge Pregerson; Dissent by Judge N.R. Smith SUMMARY** Fair Labor Standards Act The panel reversed the district courts' decisions in favor of employers, and held that Cumbie v. Woody Woo, Inc., 596 F.3d 577 (9th Cir. 2010), did not foreclose the Department of Labor's ability to promulgate subsequently a formal rule that extended the tip pooling restrictions of Section 203(m) of the Fair Labor Standards Act of 1938 ("FLSA"); and remanded for further proceedings. Under 29 U.S.C. § 203(m), an employer may fulfill part of its hourly minimum wage obligation to a tipped employee with the employee's tips by taking a tip credit; and the tip pool is valid if it is comprised exclusively of employees who are "customarily and regularly" tipped. In 2010, in Cumbie, the court held that a tip pooling arrangement comprised of both customarily tipped employees and non-customarily tipped employees did not violate section 203(m) of the FLSA because section 203(m) was silent as to employers who do not take a tip credit. In 2011, the Department of Labor promulgated a formal rule that extended the tip pool ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 OREGON REST. & LODGING ASS'N V. PEREZ restrictions of section 203(m) to all employers, not just to those who take a tip credit. 76 Fed. Reg. 18,832, 18,841–42 (April 5, 2011). The district courts in these cases held that Cumbie foreclosed the Department of Labor's ability to promulgate the 2011 rule and that the 2011 rule was invalid because it was contrary to Congress's clear intent. The panel held that the Department of Labor may regulate the tip pooling practices of employers who do not take a tip credit. The panel disagreed with the district courts' applications of Cumbie and their analyses under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). The panel held that FLSA section 203(m)'s clear silence as to employers who do not take a tip credit left room for the Department of Labor to promulgate the 2011 rule. The panel concluded that step one of the Chevron analysis was satisfied. At Chevron step two, the panel concluded that the Department of Labor's interpretation in the 2011 rule was reasonable. The panel held that the Department of Labor's regulation withstood Chevron review. Judge N.R. Smith dissented because he would hold that the cases are controlled by the holding in Cumbie, and he would affirm the district courts. OREGON REST. & LODGING ASS'N V. PEREZ 5 COUNSEL John S. Koppel (argued) and Michael Jay Singer, Attorneys, United States Department of Justice, Civil Division, Washington, D.C.; Stuart F. Delery, Assistant Attorney General, Office of the Attorney General, Washington, D.C.; S. Amanda Marshall, United States Attorney, United States Attorneys' Office, Oregon, for Defendants-Appellants Thomas Perez, et al. Joshua D. Buck (argued), Thierman Buck, Reno, Nevada; Leon Greenberg and Dana Sniegocki, Leon Greenberg Professional Corporation, Las Vegas, Nevada, for PlaintiffsAppellants Joseph Cesarz and Quy Ngoc Tang. Paul DeCamp (argued), Jackson Lewis P.C., Reston, Virginia; Nicholas M. Beerman, Peter H. Nohle, and William Robert Donovan, Jr., Jackson Lewis P.C., Seattle, Washington; Scott Oberg Oborn, Jackson Lewis P.C., Portland, Oregon, for Plaintiffs-Appellees Oregon Restaurant and Lodging Association, et al. Eugene Scalia (argued) and Alexander Cox, Gibson Dunn & Crutcher LLP, Washington, D.C.; Gregory J. Kramer and Brian J. Cohen, Kramer Zucker Abbott, Las Vegas, Nevada, for Defendants-Appellees Wynn Las Vegas, LLC, et al. 6 OREGON REST. & LODGING ASS'N V. PEREZ OPINION PREGERSON, Senior Circuit Judge: Under the Fair Labor Standards Act of 1938 ("FLSA"), as amended in 1974, an employer may fulfill part of its hourly minimum wage obligation to a tipped employee with the employee's tips. 29 U.S.C. § 203(m). This practice is known as taking a "tip credit." Section 203(m) of the FLSA obligates employers who take a tip credit to (1) give notice to its employees, and (2) allow its employees to retain all the tips they receive, unless such employees participate in a valid tip pool. Id. Under section 203(m), a tip pool is valid if it is comprised exclusively of employees who are "customarily and regularly" tipped. Id. In both cases before this court, Employer-Appellees did not take a tip credit against their minimum wage obligation; they paid their tipped employees at least the federal minimum wage. Employer-Appellees required their employees to participate in tip pools. Unlike the tip pools contemplated by section 203(m), however, these tip pools were comprised of both customarily tipped employees and non-customarily tipped employees. In 2010, we held in Cumbie v. Woody Woo, Inc. that this type of tip pooling arrangement does not violate section 203(m) of the FLSA, because section 203(m) was silent as to employers who do not take a tip credit. 596 F.3d 577, 583 (9th Cir. 2010). In 2011, shortly after Cumbie was decided, the Department of Labor ("DOL") promulgated a formal rule ("the 2011 rule") that extended the tip pool restrictions of section 203(m) to all employers, not just those who take a tip credit. 76 Fed. Reg. 18,832, 18,841–42 (April 5, 2011). OREGON REST. & LODGING ASS'N V. PEREZ 7 The United States District Court for the District of Oregon held that Cumbie foreclosed the DOL's ability to promulgate the 2011 rule and that the 2011 rule was invalid because it was contrary to Congress's clear intent. Or. Rest. & Lodging v. Solis, 948 F. Supp. 2d 1217, 1218, 1226 (D. Or. 2013). The United States District Court for the District of Nevada followed suit. Cesarz v. Wynn Las Vegas, LLC, No. 2:13-cv-00109-RCJ-CWH, 2014 WL 117579, at *3 (D. Nev. Jan. 10, 2014). For the reasons set forth below, we reverse both district court decisions. Background In 1937, President Franklin Delano Roosevelt challenged Congress "to devise ways and means of insuring to all our able-bodied working men and women a fair day's pay for a fair day's work. A self-supporting and self-respecting democracy can plead no justification for . . . chiseling workers' wages . . . ." H.R. Rep. No. 93-913 at 5–6 (1974). One year later, in 1938, Congress passed the FLSA. 29 U.S.C. § 201. "[T]he FLSA was designed to give specific minimum protections to individual workers and to ensure that each employee covered by the Act . . . would be protected from the 'evil of overwork as well as underpay.'" Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) (quoting Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578 (1942)) (internal quotation marks omitted). The FLSA was intended to provide "greater dignity and security and economic freedom for millions of American workers." H.R. Rep. No. 93-913 at 6 (1974) (quoting President Kennedy). In 1942, the Supreme Court in Williams v. Jacksonville Terminal Co. addressed the question whether tips are a 8 OREGON REST. & LODGING ASS'N V. PEREZ component of an employee's wages under the FLSA. 315 U.S. 386, 388 (1942). The petitioners, who worked as "red caps" or baggage handlers, earned a combination of wages and tips that equaled the FLSA prescribed minimum wage. Id. They sued their employer, arguing that the FLSA required that they be paid the minimum wage without regard to their earnings from tips. Id. at 389. The Court held that "where tipping is customary, the tips, in the absence of an explicit contrary understanding, belong to the recipient." Id. at 397. However, when "an arrangement is made by which the employee agrees to turn over the tips to the employer, in the absence of statutory interference, no reason is perceived for its invalidity." Id. Because the baggage handlers continued to work after being notified that tips would constitute part of their wages, the Court held that they accepted this new compensation arrangement. Id. at 398. After Jacksonville Terminal, the FLSA underwent a series of amendments, which "extended the Act's coverage." H.R. Rep. 93-913 at 4. These amendments raised the federal minimum wage and expanded the FLSA's coverage to various public and private sector employees. In 1966, the FLSA was amended to include hotel and restaurant employees. 73 Fed. Reg. 43,654, 43,659 (July 28, 2008). To alleviate the new minimum wage obligations of hotels and restaurants, "the 1966 amendments also provided for the first time, within section [20]3(m)'s definition of a 'wage,' that an employer could utilize a limited amount of its employees' tips as a credit against its minimum wage obligations . . . through a so-called 'tip credit.'" 76 Fed. Reg. at 18,838. In 1974, the FLSA was again amended. First, Congress expressly delegated to the DOL the broad authority "to prescribe necessary rules, regulations, and orders" to OREGON REST. & LODGING ASS'N V. PEREZ 9 implement the FLSA amendments of 1974. Pub. L. No. 93259, § 29(b), 88 Stat. 55 (1974). Second, Congress revised the language in 29 U.S.C. § 203(m) to read: In determining the wage an employer is required to pay a tipped employee, the amount paid such employee by the employee's employer shall be an amount equal to— (1) the cash wage paid such employee which for purposes of such determination shall not be less than the cash wage required to be paid such an employee on [August 20, 1996]; and (2) an additional amount on account of the tips received by such employee which amount is equal to the difference between the wage specified in paragraph (1) and the wage in effect under section 206(a)(1) of this title.1 1 In other words, under section 203(m) there are two components of the employer's wage obligation to tipped employees: the employer's cash wage obligation to the employee and the employee's tips. The combination of the employer's cash wage and the employee's tips must equal at least the federal minimum wage. Currently, the employer's minimum cash wage obligation to the employee is $2.13 per hour and the federal minimum wage is $7.25 per hour. If the employee earns at least $5.12 per hour in tips, then the employer has no further cash wage obligation because the employer's minimum wage obligation of $2.13 plus the employee's tips of at least $5.12 equals the minimum wage. In this example, the employer would be taking a tip credit of $5.12 per hour. If the employee earns less than $5.12 per hour in tips, the employer would be responsible for making up the difference between the tip credit 10 OREGON REST. & LODGING ASS'N V. PEREZ The additional amount on account of tips may not exceed the value of the tips actually received by an employee. The preceding 2 sentences shall not apply with respect to any tipped employee unless such employee has been informed by the employer of the provisions of this subsection, and all tips received by such employee have been retained by the employee, except that this subsection shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips. 29 U.S.C. § 203(m). As amended in 1974, section 203(m) required employers to give their employees prior notice of their intent to use a tip credit and "made it clear that tipped employees must receive at least minimum wage and must generally retain any tips." 73 Fed. Reg. at 43,659. In 2010, we held in Cumbie v. Woody Woo, Inc. that section 203(m) does not restrict the tip pooling practices of employers who do not take tip credits. 596 F.3d at 583. The employer, Woody Woo, Inc., paid its servers a cash wage that exceeded the federal minimum wage but required its servers to contribute their tips to a "tip pool" that included employees who were not regularly or customarily tipped. Id. at 578–79. The servers claimed that Woody Woo's tip pooling practice violated section 203(m) because the practice included noncustomarily tipped employees. Id. at 579. We applied the "default" rule from Jacksonville Terminal, and found that "in and the minimum wage. For example, if an employee receives $1.00 per hour in tips, the employer would be required to pay $6.25 per hour. In this example, the employer would be taking a tip credit of $1.00 per hour. OREGON REST. & LODGING ASS'N V. PEREZ 11 the absence of statutory interference, no reason is perceived for [Woody Woo's tip pooling practice's] invalidity." Id. (quoting Jacksonville Terminal, 315 U.S. at 397) (emphasis and internal quotation marks omitted). In Cumbie, we read section 203(m) to apply only to employers who did take a tip credit; for these employers, section 203(m) is considered "statutory interference." 596 F.3d at 581. In contrast, for an employer that meets its minimum wage obligation without taking a tip credit, section 203(m) is silent; therefore, there is no statutory interference. Without statutory interference, Jacksonville Terminal's default rule controlled, and we concluded that Woody Woo's tip pooling practice was valid. Id. at 583. In 2008, two years before the Cumbie decision, the DOL published a notice of proposed rulemaking and request for comments under the Administrative Procedure Act, 5 U.S.C. §§ 556–557. The lengthy notice set forth specific revisions to sections that governed tipped employees in order "to incorporate . . . legislative history, subsequent court decisions, and the [DOL's] interpretations" into the FLSA. 73 Fed. Reg. at 43,659. More than ten different organizations submitted comments. These comments and the Cumbie decision disclosed that section 203(m)'s tip pooling restrictions could be read to apply only to employers who take a tip credit. The comments also revealed that section 203(m) could encourage abuse in an already "high-violation industry." See 76 Fed. Reg. at 18,840–42. In 2011, in response to these comments and the statutory silence that Cumbie exposed, the DOL promulgated new rules to make it clear that tips are the property of the employee. Id. at 18,841–42; 29 C.F.R. §§ 531.52, 531.55, 531.59. 12 OREGON REST. & LODGING ASS'N V. PEREZ Specifically, the DOL revised 29 C.F.R. § 531.52 by replacing the sentence: In the absence of an agreement to the contrary between the recipient and a third party, a tip becomes the property of the person in recognition of whose service it is presented by the customer. with the following language: Tips are the property of the employee whether or not the employer has taken a tip credit under section [20]3(m) of the FLSA. The employer is prohibited from using an employee's tips, whether or not it has taken a tip credit, for any reason other than that which is statutorily permitted in section [20]3(m): As a credit against its minimum wage obligations to the employee, or in furtherance of a valid tip pool. Compare 32 Fed. Reg. 13,575, 13,580 (Sept. 28, 1967), with 29 C.F.R. § 531.52 (2011). The 2011 rule expressly prohibits the use of a tip pool that violates section 203(m) regardless of whether an employer uses a tip credit. These revisions to 29 C.F.R. § 531.52 are the subject of the two cases before us. The Oregon Restaurant and Lodging Association, consisting of restaurants, taverns, and one individual, brought suit against the DOL, challenging the validity of the 2011 rule and seeking to enjoin its enforcement. Later, a group of casino dealers brought suit against their employer, Wynn Las Vegas, LLC, challenging OREGON REST. & LODGING ASS'N V. PEREZ 13 Wynn's tip pooling practice as violating the 2011 rule. In both cases, the employers paid the employees at least the federal minimum wage and did not take a tip credit. The employers also instituted tip pools, in which customarily tipped employees, i.e., servers and casino dealers, were required to share tips with non-customarily tipped employees, i.e., kitchen staff and casino floor supervisors. Both district courts sided with the employers, relying in large part on our holding in Cumbie.2 The DOL and the casino dealers appealed. Discussion I. Standard of Review We review a district court's grant of summary judgment de novo. Los Coyotes Band of Cahuilla & Cupeño Indians v. Jewell, 729 F.3d 1025, 1035 (9th Cir. 2013). We also review a district court's grant of a motion to dismiss de novo. Fayer v. Vaughn, 649 F.3d 1061, 1063–64 (9th Cir. 2011). We review the validity of an agency's regulatory interpretation of a statute under the two-step framework set forth in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).3 The first step is to ask, "has 2 In Oregon, the district court granted summary judgment in favor of the Oregon Restaurant and Lodging Association. In Nevada, the district court granted Wynn's motion to dismiss under 12(b)(6) for failure to state a claim. 3 At Chevron step zero, we ask whether the Chevron framework applies at all. An "administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the 14 OREGON REST. & LODGING ASS'N V. PEREZ [Congress] directly spoken to the precise question at issue." Id. at 842. If Congress's intent is clear, then that is the end of our inquiry. Id. at 842–43. If, however, "the statute is silent or ambiguous with respect to the specific issue," we proceed to step two and ask if the agency's action is "based on a permissible construction of the statute." Id. at 843. Even if we believe the agency's construction is not the best construction, it is entitled to "controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute." Id. at 844; see also Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs.("Brand X"), 545 U.S. 967, 980 (2005). II. Analysis When the Oregon district court and the Nevada district court conducted their Chevron analysis, both held that Cumbie left "no room" for the DOL to promulgate its 2011 rule and thus granted Oregon Restaurant & Lodging's motion for summary judgment, Or. Rest. & Lodging, 948 F. Supp. 2d at 1226, and Wynn's motion to dismiss, Cesarz, 2014 WL 117579, at *3. We disagree with the district courts' applications of Cumbie and their Chevron analyses. force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." United States v. Mead Corp., 533 U.S. 218, 226–27 (2001). In 1974, Congress granted the Secretary of Labor the authority to "prescribe necessary rules, regulations, and orders with regard to the [1974] amendments" to the FLSA, which included section 203(m). Pub. L. No. 93-259, § 29(b), 88 Stat. 55, 76. The DOL exercised its rulemaking authority within its substantive field when it promulgated the 2011 rule. This is sufficient to satisfy the Chevron step zero inquiry. See City of Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013). OREGON REST. & LODGING ASS'N V. PEREZ 15 A. Chevron Step One The precise question before this court is whether the DOL may regulate the tip pooling practices of employers who do not take a tip credit. The restaurants and casinos argue that we answered this question in Cumbie. We did not. Our task in Cumbie was to decide whether a restaurant's tip pooling practice violated the FLSA. 596 F.3d at 578. We did not hold that the FLSA unambiguously and categorically protects the practice in question. Rather, we held that "nothing in the text purports to restrict" the practice in question. Id. at 583. In reaching this holding, we relied on Christensen, in which the "Supreme Court . . . made clear that an employment practice does not violate the FLSA unless the FLSA prohibits it." Id. (citing Christensen v. Harris Cty, 529 U.S. 576, 588 (2000)). Christensen illustrates the crucial distinction between statutory language that affirmatively protects or prohibits a practice and statutory language that is silent about that practice. In Christensen, the plaintiffs-employees worked a substantial amount of unpaid overtime for their employer, Harris County, for which the employees accumulated "compensatory time" in lieu of cash compensation at a rate of one and a half hours for every hour of overtime worked. 529 U.S. at 579–80. The FLSA expressly authorized the use of the compensatory time but also set a statutory cap on the amount of compensatory time an employee could accrue, after which the employer would be required to pay monetary compensation for every additional hour of overtime worked. Id. To avoid having to pay large sums of monetary overtime compensation, Harris County enacted a policy whereby it could force its employees to use their compensatory time so 16 OREGON REST. & LODGING ASS'N V. PEREZ that they would not reach the statutory cap. Id. at 580–81. The employees sued and argued that Harris County's policy violated a provision of the FLSA that required employers to reasonably accommodate employee requests to use compensatory time. Id. at 581 (citing 29 U.S.C. § 207(o)(5)). The Supreme Court rejected the employees' argument because "no relevant statutory provision expressly or implicitly prohibits" the employer's policy. Id. at 588. As we held in Cumbie, the Court in Christensen held that the employer's policy did not violate the FLSA because nothing in the FLSA prohibited the employer's policy. Id. at 585–86. The Court reasoned that "[b]ecause the statute is silent on this issue and because Harris County's policy is entirely compatible with [the statute]," there was no violation. Id. at 585 (emphasis added). Thus, just as we did in Cumbie, the Court in Christensen construed the FLSA's silence in favor of the employer. But, critically, the Court in Christensen did not preclude the DOL from enacting future regulations that prohibited the challenged policy. Indeed, the Court suggested that were the agency to enact future regulations, Chevron deference would apply. See id. at 586–87. The Court noted that "[o]f course, the framework of deference set forth in Chevron does apply to an agency interpretation contained in a regulation. But in this case the Department of Labor's regulation does not address the issue of compelled compensatory time." Id. at 587. The Court also acknowledged that the DOL had issued an opinion letter on the subject, but noted that an interpretation in an opinion letter is not entitled to Chevron deference because it is "not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking." Id. Five Justices joined this portion of the Court's opinion, OREGON REST. & LODGING ASS'N V. PEREZ 17 including Justice Souter, who filed a single-sentence concurrence: I join the opinion of the Court on the assumption that it does not foreclose a reading of the Fair Labor Standards Act of 1938 that allows the Secretary of Labor to issue regulations limiting forced use. Id. at 589 (Souter, J., concurring). The Court's comments regarding Chevron deference, along with Justice Souter's concurrence, suggest that the DOL, by regulation, could prohibit the very practice the Court held to be neither explicitly nor implicitly prohibited by the FLSA. Following that reasoning, Cumbie should not be read to foreclose the DOL's ability to subsequently issue a regulation prohibiting the challenged tip pooling practice. Here, the Oregon district court, the Nevada district court, the parties, and the dissent overlook the part of Christensen that discussed Chevron deference and Judge Souter's concurrence. Instead, the district courts, the parties, and the dissent focus their attention on the rule from Brand X. In Brand X, the Supreme Court held that "[a] court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion." 545 U.S. at 982. Relying on Brand X, the restaurants and casinos argued that Cumbie trumps the 2011 rule because Cumbie relied on the "clear" language of the FLSA. The district courts adopted this 18 OREGON REST. & LODGING ASS'N V. PEREZ position. Or. Rest. & Lodging, 948 F. Supp. 2d at 1223; Cesarz, 2014 WL 117579 at *3. But as Christensen strongly suggests, there is a distinction between court decisions that interpret statutory commands and court decisions that interpret statutory silence. Moreover, Chevron itself distinguishes between statutes that directly address the precise question at issue and those for which the statute is "silent." Chevron, 467 U.S. at 843. As such, if a court holds that a statute unambiguously protects or prohibits certain conduct, the court "leaves no room for agency discretion" under Brand X, 545 U.S. at 982. However, if a court holds that a statute does not prohibit conduct because it is silent, the court's ruling leaves room for agency discretion under Christensen. Cumbie falls precisely into the latter category of cases—cases grounded in statutory silence. When we decided Cumbie, the DOL had not yet promulgated the 2011 rule. Thus, there was no occasion to conduct a Chevron analysis in Cumbie because there was no agency interpretation to analyze.4 The Cumbie analysis was limited 4 In Cumbie, after citing Jacksonville Terminal for the "background principle" that an arrangement to turn over or redistribute tips is valid "in the absence of statutory interference," we noted that we "need not decide whether" the DOL's over forty-year-old regulations governing tips "are still valid and what level of deference they merit" "because we conclude that the meaning of the FLSA's tip credit provision is clear." 596 F.3d at 579 & n.6. However, the DOL regulations at the time did not specifically address the issue of employers who require tip pooling and do not take a tip credit. See 32 Fed. Reg. at 13,580; see also Christensen, 529 U.S. at 587. Moreover, contrary to the dissent's assertion, our characterization in Cumbie of the FLSA's tip credit provision as "clear" does not necessarily foreclose agency discretion. What was "clear" in Cumbie was that the FLSA's tip credit provision did not impose any "statutory interference" OREGON REST. & LODGING ASS'N V. PEREZ 19 to the text of section 203(m). After a careful reading of section 203(m) in Cumbie, we found that "nothing in the text of the FLSA purports to restrict employee tip-pooling arrangements when no tip credit is taken" and therefore there was "no statutory impediment" to the practice. 596 F.3d at 583. Applying the reasoning in Christensen, we conclude that section 203(m)'s clear silence as to employers who do not take a tip credit has left room for the DOL to promulgate the 2011 rule. Whereas the restaurants, casinos, and the district courts equate this silence concerning employers who do not take a tip credit to "repudiation" of future regulation of such employers, we decline to make that great leap without more persuasive evidence. See United States v. Home Concrete & Supply, LLC, 132 S. Ct 1836, 1843 (2012) ( "[A] statute's silence or ambiguity as to a particular issue means that Congress has . . . likely delegat[ed] gap-filling power to the agency[.]"); Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 222 (2009) ("[S]ilence is meant to convey nothing more than a refusal to tie the agency's hands . . . ."); S.J. Amoroso Constr. Co. v. United States, 981 F.2d 1073, 1075 (9th Cir. 1992) ("Without language in the statute so precluding [the agency's challenged interpretation], it must be said that Congress has not spoken to the issue."). In sum, we conclude that step one of the Chevron analysis is satisfied because the FLSA is silent regarding the tip pooling practices of employers who do not take a tip credit. Our decision in Cumbie did not hold otherwise. that would invalidate tip pooling when no tip credit is taken – i.e., that the FLSA was silent regarding this practice. 20 OREGON REST. & LODGING ASS'N V. PEREZ B. Chevron Step Two Having found that the statute is silent as to the precise question at issue, we continue to step two. At Chevron step two, we must determine if the DOL's interpretation is reasonable. Chevron, 467 U.S. at 843–44. This is a generous standard, requiring deference "even if the agency's reading differs from what the court believes is the best statutory interpretation." Brand X, 545 U.S. at 980. We may reject an agency's construction only if it is arbitrary, capricious, or manifestly contrary to the statute. Chevron, 467 U.S. at 844. To determine whether the DOL's interpretation is reasonable, "we look to the plain and sensible meaning of the statute, the statutory provision in the context of the whole statute and case law, and to the legislative purpose and intent." Nat. Res. Def. Council v. U.S. Envtl. Prot. Agency, 526 F.3d 591, 605 (9th Cir. 2008) (citation omitted). The DOL promulgated the 2011 rule after taking into consideration numerous comments and our holding in Cumbie. The AFL-CIO, National Employment Lawyers Association, and the Chamber of Commerce all commented that section 203(m) was either "confusing" or "misleading" with respect to the ownership of tips. 76 Fed. Reg. at 18840–41. The DOL also considered our reading of section 203(m) in Cumbie and concluded that, as written, 203(m) contained a "loophole" that allowed employers to exploit the FLSA tipping provisions. Id. at 18841. It was certainly reasonable to conclude that clarification by the DOL was needed. The DOL's clarification—the 2011 rule—was a reasonable response to these comments and relevant case law. The legislative history of the FLSA supports the DOL's interpretation of section 203(m) of the FLSA. An OREGON REST. & LODGING ASS'N V. PEREZ 21 "authoritative source for finding the Legislature's intent lies in the Committee Reports on the bill, which represent the considered and collective understanding of those Congressmen [and women] involved in drafting and studying proposed legislation." Garcia v. United States, 469 U.S. 70, 76 (1984) (citation and internal quotation marks omitted). On February 21, 1974, the Senate Committee published its views on the 1974 amendments to section 203(m). S. Rep. No. 93690 (1974). Employer-Appellees argue that the report reveals an intent contrary to the DOL's interpretation because the report states that an "employer will lose the benefit of [the tip credit] exception if tipped employees are required to share their tips with employees who do not customarily and regularly receive tips[.]" In other words, Appellees contend that Congress viewed the ability to take a tip credit as a benefit that came with conditions and should an employer fail to meet these conditions, such employer would be ineligible to reap the benefits of taking a tip credit. While this is a fair interpretation of the statute, it is a leap too far to conclude that Congress clearly intended to deprive the DOL the ability to later apply similar conditions on employers who do not take a tip credit. Moreover, the surrounding text in the Senate Committee report supports the DOL's reading of section 203(m). The Committee reported that the 1974 amendment "modifies section [20]3(m) of the Fair Labor Standards Act by requiring . . . that all tips received be paid out to tipped employees." S. Rep. No. 93-690, at 42. This language supports the DOL's statutory construction that "[t]ips are the property of the employee whether or not the employer has taken a tip credit." 29 C.F.R. § 531.52. In the same report, the Committee wrote 22 OREGON REST. & LODGING ASS'N V. PEREZ that "tipped employee[s] should have stronger protection," and reiterated that a "tip is . . . distinguished from payment of a charge . . . [and the customer] has the right to determine who shall be the recipient of the gratuity." S. Rep. No. 93690, at 42. In 1977, the Committee again reported that "[t]ips are not wages, and under the 1974 amendments tips must be retained by the employees . . . and cannot be paid to the employer or otherwise used by the employer to offset his wage obligation, except to the extent permitted by section [20]3(m)." S. Rep. No. 95-440 at 368 (1977) (emphasis added). The use of the word "or" supports the DOL's interpretation of the FLSA because it implies that the only acceptable use by an employer of employee tips is a tip credit. Additionally, we find that the purpose of the FLSA does not support the view that Congress clearly intended to permanently allow employers that do not take a tip credit to do whatever they wish with their employees' tips. The district courts' reading that the FLSA provides "specific statutory protections" related only to "substandard wages and oppressive working hours" is too narrow. As previously noted, the FLSA is a broad and remedial act that Congress has frequently expanded and extended. Considering the statements in the relevant legislative history and the purpose and structure of the FLSA, we find that the DOL's interpretation is more closely aligned with Congressional intent, and at the very least, that the DOL's interpretation is reasonable. OREGON REST. & LODGING ASS'N V. PEREZ 23 Conclusion To be clear, we have no quarrel with Cumbie v. Woody Woo Inc., 596 F.3d 577 (9th Cir. 2010). Our conclusion with respect to Cumbie is only that its holding was grounded in statutory silence. Following Christensen v. Harris Cty., 529 U.S. 576 (2000), we find that Cumbie does not foreclose the DOL's ability to regulate tip pooling practices of employers who do not take a tip credit. Applying Chevron, we conclude that Congress has not addressed the question at issue because section 203(m) is silent as to the tip pooling practices of employers who do not take a tip credit. There is no convincing evidence that Congress's silence, in this context, means anything other than a refusal to tie the agency's hands. In exercising its discretion to regulate, the DOL promulgated a rule that is consistent with the FLSA's language, legislative history, and purpose. Therefore, having decided that the regulation withstands Chevron review, we reverse both judgments and remand for proceedings consistent with this opinion. REVERSED and REMANDED. 24 OREGON REST. & LODGING ASS'N V. PEREZ N.R. SMITH, Circuit Judge, dissenting: 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.1 This case is nothing more than Cumbie II. Because the majority ignores our precedent in Cumbie v. Woody Woo, Inc. ("Cumbie"), 596 F.3d 577 (9th Cir. 2010), I begin by describing it in some detail. I will then compare Cumbie to this case. In Cumbie, a waitress working at an Oregon restaurant sued the restaurant, alleging that its tip-pooling arrangement violated 29 U.S.C. § 203(m). Id. at 579. [The restaurant] paid its servers a cash wage at or exceeding Oregon's minimum wage, which at the time was $2.10 more than the federal minimum wage. In addition to this cash wage, the servers received a portion of their daily tips. [The restaurant] required its servers to contribute their tips to a "tip pool" that was redistributed to all restaurant employees. The largest portion of the tip pool (between 55% and 70%) went to kitchen staff (e.g., dishwashers and cooks), who are not 1 As a three-judge panel of this circuit, we are bound by prior panel opinions and can only reexamine them when "the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority." Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). Here, our circuit precedent is clear and there has been no intervening higher authority. Therefore, we are bound to follow precedent. OREGON REST. & LODGING ASS'N V. PEREZ 25 customarily tipped in the restaurant industry. The remainder (between 30% and 45%) was returned to the servers in proportion to their hours worked. Id. at 578–79 (footnotes omitted). The district court dismissed the waitress's complaint for failure to state a claim, and she timely appealed. Id. at 579. On appeal, the waitress argued the restaurant's tip-pooling arrangement was invalid, because it included employees who were not "customarily and regularly tipped employees" under section 203(m). Id. The restaurant argued that this interpretation of section 203(m) was correct only "vis-à-vis employers who take a 'tip credit' toward their minimumwage obligation," and that, because the restaurant had not taken a tip credit, it had not violated section 203(m). Id. We affirmed the district court, relying on the precedent established by the Supreme Court in Williams v. Jacksonville Terminal Co., 315 U.S. 386 (1942). Cumbie, 596 F.3d at 579. In Williams, the Supreme Court held that "[i]n businesses where tipping is customary, the tips, in the absence of an explicit contrary understanding, belong to the recipient. Where, however, [such] an arrangement is made . . . , in the absence of statutory interference, no reason is perceived for its invalidity." Williams, 315 U.S. at 397 (internal citations omitted). Thus, "Williams establish[ed] the default rule that an arrangement to turn over or to redistribute tips is presumptively valid." Cumbie, 596 F.3d at 579. We also held, as a matter of first impression, that section 203(m) did not interfere with the default rule articulated in Williams. Id. at 580–81. Employers (who do not take a tip 26 OREGON REST. & LODGING ASS'N V. PEREZ credit) remain free to contract with their tipped employees to redistribute tips among all employees, including those who are not customarily tipped. Cumbie, 596 F.3d at 579–81. We reasoned that section 203(m) did not impose statutory interference, because the plain text of section 203(m) had only imposed a condition on employers who take a tip credit, rather than a blanket requirement on all employers regardless of whether they take a tip credit. Cumbie, 596 F.3d at 581. As we concluded, "[a] statute that provides that a person must do X in order to achieve Y does not mandate that a person must do X, period." Id. We continued: If Congress wanted to articulate a general principle that tips are the property of the employee [when the employer does not take a tip credit], it could have done so without reference to the tip credit. "It is our duty to give effect, if possible, to every clause and word of a statute." United States v. Menasche, 348 U.S. 528, 538–39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (internal quotation marks omitted). Therefore, we decline to read [section 203(m)] in such a way as to render its reference to the tip credit, as well as its conditional language and structure, superfluous. Id. Because the restaurant in Cumbie did not take a tip credit, there was no basis for concluding that the restaurant's tippooling arrangement violated section 203(m). Id. Lastly, we addressed the waitress's argument that the restaurant was functionally taking a tip credit by using a tippooling arrangement to subsidize the wages of its non-tipped OREGON REST. & LODGING ASS'N V. PEREZ 27 employees. Id. at 582. We said, even if this were the case, this "de facto" tip credit was not "so absurd or glaringly unjust as to warrant a departure from the plain language of the statute." Id. (quoting Ingals Shipbuilding, Inc. v. Dir., Office of Workers' Comp. Programs, 519 U.S. 248, 261 (1997)). We recognized that "[t]he purpose of the [Fair Labor Standards Act ("FLSA")] is to protect workers from 'substandard wages and oppressive working hours,'" and concluded that the restaurant's tip-pooling arrangement did not thwart that purpose. Id. (quoting Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981)). Thus, because "[t]he Supreme Court has made it clear that an employment practice does not violate the FLSA unless the FLSA prohibits it," we rejected the waitress's argument and concluded that the FLSA does not restrict employee tip-pooling arrangements when the employer does not take a tip credit. Id. at 583. We now decide a case identical to Cumbie. Once again, an Oregon restaurant (named aptly enough "Oregon Restaurant") is defending its practice of pooling the tips of its tipped employees and redistributing those tips among all of its employees, including those who are not customarily tipped. Exactly like Cumbie, the restaurant is paying all of its employees above minimum wage and has not taken a tip credit. Again, its tipped employees are challenging that practice—not under a new theory, but under the same theory advanced in Cumbie. Again, they argue that section 203(m) prohibits the redistribution of tips.2 Because we are obligated 2 Technically, rather than waiting to be sued by its tipped employees, Oregon Restaurant is instead suing the Department of Labor in response to its newly promulgated rule reinterpreting section 203(m). Nonetheless, in Cesarz v. Wynn Las Vegas (the other case in this appeal), involving a casino instead of a restaurant, the tipped casino dealers are indeed suing 28 OREGON REST. & LODGING ASS'N V. PEREZ to follow precedent, this case should have ended with a memorandum disposition. Instead, the majority ignores our circuit precedent and pretends this case is different, because this time the Department of Labor ("DOL") has promulgated a new rule interpreting section 203(m) differently than we interpreted it in Cumbie. However, the DOL's promulgation of this new rule changes nothing. As the majority notes, if Congress's intent behind a statute is clear, that is the end of our inquiry. We need not defer to an agency's interpretation of this statute. Maj. Op. at 13–14; Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). No one disputes that the courts can determine whether a statute is clear. In fact, the Supreme Court has held that a prior judicial construction of a statute "trumps an agency construction otherwise entitled to Chevron deference" when "the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion." See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs. ("Brand X"), 545 U.S. 967, 982 (2005). The majority wants to dodge the Brand X bullet by saying Cumbie did not determine that the meaning of section 203(m) is clear and unambiguous, but instead only determined that "nothing in the text purports to restrict" the practice of redistributing tips, thereby leaving room for agency interpretation. Maj. Op. at 15, 18–19 (quoting Cumbie, 596 F.3d at 583). This interpretation of Cumbie has no merit. Any rational reading of Cumbie unequivocally the casino just as the waitress in Cumbie sued the restaurant. Thus, the facts and procedural posture in both cases remain functionally identical to those in Cumbie. OREGON REST. & LODGING ASS'N V. PEREZ 29 demonstrates that we determined the meaning of section 203(m) is clear and unambiguous, leaving no room for agency interpretation. We explicitly concluded that section 203(m) is "clear" or "plain" multiple times—not only in the footnotes to the opinion, but also in the text of the opinion itself. Cumbie, 596 F.3d at 579 n.6, 580–81, 581 n.11. Moreover, because the language of the statute was clear and unambiguous, we expressly concluded there was no need to refer to the legislative history. Id. at 581 n.11. If there were any remaining question concerning the plain language of the statute, we clearly stated that any alternate reading would render its language and structure superfluous. Id. at 581. Indeed, there has not been penned a stronger application of the Brand X standard than the majority encounters in Cumbie. If Cumbie did anything at all, it held that the meaning of section 203(m) was clear an§d unambiguous.3 The majority next tries to dodge Cumbie by suggesting section 203(m) is silent as to whether the DOL can regulate tip pooling arrangements of employers who do not take a tip credit. Cumbie addressed this "statutory silence" argument squarely: according to the plain text of the statute, section 203(m) only applies to employers who do take a tip credit (because they are not paying the minimum wage), and therefore does not apply to employers who do not take a tip credit. Nowhere in its text, either explicitly or implicitly, does section 203(m) impose a blanket tipping requirement on all 3 The majority counters that "[w]hat was 'clear' in Cumbie was that the FLSA's tip credit provision did not impose any 'statutory interference' that would invalidate tip pooling when no tip credit is taken." Maj. Op. at 18–19, n.4. Read Cumbie; the majority is wrong. Instead, we explicitly held in Cumbie that section 203(m) does not apply to employers who do not take a tip credit, and that any alternate reading would render its language and structure superfluous. Cumbie, 596 F.3d at 581. 30 OREGON REST. & LODGING ASS'N V. PEREZ employers. We explained, "[a] statute that provides that a person must do X in order to achieve Y does not mandate that a person must do X, period." Cumbie, 596 F.3d at 581. There is no contrived ambiguity to address in section 203(m). Contrary to the majority opinion, Christensen has no validity here. Maj. Op. at 15; see Christensen v. Harris Cty., 529 U.S. 576, 588 (2000).4 Even if Christensen were relevant, the majority's interpretation of Christensen turns Chevron on its head. Instead of requiring that administrative rulemaking be rooted in a congressional delegation of authority, the majority claims that, where a statute is "silent," administrative regulation is not prohibited. In other words, the majority suggests an agency may regulate wherever that statute does not forbid it to regulate. This suggestion has no validity. The Supreme Court has made clear that it is only in the ambiguous "interstices" within the statute where silence warrants administrative interpretation, not the vast void of silence on either side of it. Util. Air Regulatory Grp. v. E.P.A., 134 S. Ct. 2427, 2445 (2014) ("Agencies exercise discretion only in the interstices created by statutory silence or ambiguity 4 The majority states "the dissent overlook[s] the part of Christensen that discussed Chevron deference and Judge Souter's concurrence." Maj. Op. at 17. Again, the majority is wrong. In Christensen, the Supreme Court allowed the DOL to enact further regulation over compensatory time, because the DOL had been given the express authority to do so. Christensen, 529 U.S. at 580–81. However, under section 203(m), the DOL has only been given authority to regulate the tips of employers who take a tip credit. The DOL has not been given authority to regulate the tips of employers who pay their employees a minimum wage and do not take a tip credit. Therefore, unlike Christensen, there was no statutory silence permitting the DOL further regulation of this issue. OREGON REST. & LODGING ASS'N V. PEREZ 31 . . . ."). If it were otherwise, within each statute granting administrative authority, Congress would need to erect walls, making it clear that the agency is limited to regulating only that which the statute expressly addresses, or implies within those parameters. As the district court below correctly noted, "[t]o express its intention that certain activities be left free from regulation, Congress need not lace the United States Code with the phrase, 'You shall not pass!'" Oregon Rest. & Lodging v. Solis, 948 F.Supp. 2d 1217, 1225–26 (D. Oreg. 2013). Thus, because section 203(m) is "silent" to regulation over employers who do not take a tip credit, any such regulation falls outside of the scope of the statute and the DOL has no power to regulate there. See City of Arlington v. F.C.C., 133 S. Ct. 1863, 1868 (2013) ("No matter how it is framed, the question a court faces when confronted with an agency's interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority."). It is curious why the majority seizes on the DOL's newly promulgated rule as the basis for its decision. The argument the DOL makes now was the same argument made in Cumbie.5 However in Cumbie, the waitress ultimately "recogniz[ed] that section 203(m) [was] of no assistance" in prohibiting employers (who do not take a tip credit) from pooling their employees' tips and "disavowed reliance on it in her reply brief and at oral argument" in favor of an alternative, albeit equally meritless argument. Cumbie, 596 F.3d at 581. Now, after losing in Cumbie, the DOL has decided to go through the backdoor by promulgating a new 5 The DOL supported the waitress's appeal in Cumbie by filing an amicus brief. 32 OREGON REST. & LODGING ASS'N V. PEREZ rule codifying its argument in Cumbie and its preferred interpretation of section 203(m). Chevron deference does not work that way. The DOL is not a legislative body unto itself, but instead must carry out Congress's intent. Chevron, 467 U.S. at 842–43. To the extent Congress's intent is unclear with regard to a particular statute, the DOL may engage in statutory interpretation and issue rules. Id. But that circumstance is not presented here. Instead, we explicitly and unequivocally found section 203(m) clear and unambiguous. Congress's intent was clear on this matter. Regardless of how much the DOL dislikes the interpretation, it must follow it. See Brand X, 545 U.S. at 982. The DOL is not free to manufacture an ambiguity, which circuit precedent mandates is not there. CONCLUSION There are two cases before us. In the first case, the Oregon Restaurant and Lodging Association sued the DOL, challenging the validity of its newly promulgated rule and seeking to enjoin its enforcement. In the second case, a group of casino dealers sued their employer, Wynn Las Vegas, LLC, challenging its tip pooling practice as a violation of the DOL's new rule. In both of these cases, the employer paid its employees above minimum wage and did not take a tip credit. In both cases, the district court ruled in favor of the employer, relying in large measure on our decision in Cumbie. Our course is clear in both cases. Williams is still good law; the Supreme Court has done nothing to overturn or alter it. See Williams, 315 U.S. at 397. Thus, the rule remains that tips belong to the tipped employee unless otherwise agreed between the employee and the employer. Here, such OREGON REST. & LODGING ASS'N V. PEREZ 33 agreements existed between the employers and their respective employees. These tip redistribution agreements are presumptively valid and compliant with our circuit's law. Thus, in each case, we ought to be affirming the district court. To do otherwise is to ignore circuit precedent and disregard stare decisis, as the majority does here. I respectfully dissent.
of Ninth Circuit opinions.


Biometric technologies such as iris scanning, fingerprint or facial recognition, have opened up exciting new possibilities for humanitarian aid delivery, but the potential risks are high. That's why Oxfam is looking for a consultant to conduct research into the safe use of biometrics in humanitarian response: is this an area you are working in?
Imagine if you had lost everything and the only way to access much-needed aid was to hand over your most personal data – providing an iris or finger scan. On the one hand you could be sure that only you could claim the aid intended for you. On the other, what if that data was somehow lost or compromised? The consequences could be severe, especially in conflict situations.
Imagine if you had lost everything and the only way to access much-needed aid was to hand over your most personal data – providing an iris or finger scan?
Against a backdrop of increased engagement with cash-based programming, humanitarian agencies are under pressure to be more transparent and accountable for the assistance they provide. Currently, Oxfam is working with a number of technologies such as Last Mile Mobile Solutions (LMMS) to register and subsequently authenticate people's identities. Where appropriate these may capture photos to help identify people, but they stop short of capturing any form of algorhythmic data (such as iris or fingerprint scans).
Biometrics refers to measurements related to human characteristics used for identification and authentication; it can include iris scanning, fingerprints or facial recognition. Seeking to address the potential for fraud, and to ensure greater accountability in our work, the opportunity of using biometrics as a technology to verify beneficiaries in our programmes is increasingly on the radar of many Oxfam country teams, however there is also limited evidence recorded and practical research as to the most effective and safest models for using biometric technologies in humanitarian programmes. And so much depends on the context! Which actors should be responsible for taking biometric measurements for example?
As far as we know, use of biometric technology in the humanitarian sector so far has been the prerogative of the UN agencies, primarily UNHCR and its implementing partners, with recent reports of four million enrolments across 43 countries using their BIMS and IrisGuard solutions. Benefits highlighted in particular from the use of IrisGuard system across countries in the Middle East hosting Syrian refugees include speed and dignity of access to assistance for recipients, elimination of fraud, and improved credibility with resettlement countries to name a few. However, because of the nature of the data, the margin for error when it comes to biometric data is exceptionally small compared to other technologies, enhancing the risk if we get the process or guidance wrong. The effects could be profound and long-lasting.
One often quoted phrase is that "security is only as strong, as its weakest link – and its weakest link is often the user. Not wanting to become the weakest link, in 2015 Oxfam self-imposed a moratorium on the use of biometrics – acknowledging that even if biometric authentication methods would inevitably find its way into the sector, given the number of unknowns around most effective governance models and risks of this incredibly sensitive data falling into the wrong hands, we felt it was best not to become an early adopter.
Since the moratorium was introduced, a number of external drivers have emerged that, at Oxfam we feel, increase the urgency for a clear guidance on engagement with biometrics, not least because of the new General Data Protection Regulation (GDPR) coming into place in May 2018. Biometric technology itself has become more widespread and affordable, but not necessarily fit for purpose or tailored for use in typical humanitarian operating contexts.
With this in mind, Oxfam's ICT in Programme team is kicking off a research project to help inform Oxfam's technology and governance choice over the next 3-5 years around secure, ethical and cost-effective use of biometric technologies. Time will tell whether we'll be able to find a model that ticks all these boxes. In any case, our Responsible Programme Data policy will form the backbone of this research, with individuals rights to privacy and protection viewed as fundamental to any application standards, models or operational guidance.
We hope the research will be led by an external agency, initiating and informing debate around the ethics and responsible uses of biometric technologies in the humanitarian sector and perhaps use of biometric for social impact more broadly– so will be sure to use up and coming events such as MERLTech Conference at the end of March 2018 and ICT4D Conference in May 2018 to share our findings. We would also like to hear from other aid agencies on their thoughts and research into the use of biometrics.
In the meantime, the project is looking for expressions of interests from parties who, like us at Oxfam are passionate about ethical, responsible and sustainable uses of technology in programmes and ideally also have background in either delivering digital technology projects or researching the impact of digital platforms and tools in the global South. View the research job description for more information. If you have thoughts or comments on the topic, do get in touch. We'd love to hear from you.
Anna is ICT in Programme Humanitarian Adviser. She advises on applications of information and communications technologies in Oxfam's humanitarian response and longer term resilience building programmes.


text:
Mescal Gunstensen, Sheilagh
Email: Sheilagh.mescalgunstensen@rutgers.edu
Research Interests: Using a feminist lens, exploring domestic and international Gender Based Violence rooted in Politics/laws; Religion, Patriarchy and White Supremacy.
Education: 1986 Bachelors of Science in Nursing Queens' University, Canada
Committee: Julie Rajan (Chair), Charlotte Bunch, Brittney Cooper
Thesis/Practicum: Practicum: "Transforming Domestic Violence and Sexual Assault Advocacy Training through the Framework of Intersectionality, in Mercer County, New Jersey."
I first became interested in Gender-Based Violence 35 years ago as a young nurse in the ICU, my patient had been thrown from her moving car by her husband. Police investigators at that time were aware of multiple instances of domestic violence but it was not until he had harmed her so gravely that the law and custom allowed them to pursue him in any meaningful way. She died from her injuries. Since that time I have worked independently to understand the complexity of GBV. I have worked for the past several years as a volunteer victims' advocate with survivors of domestic violence and sexual assault, and more recently as a court advocate for domestic violence survivors. Also in these intervening years, advocate for domestic violence survivors. Also in these intervening years, I have lived in 2 other countries, raised a family, helped found a school, taken classes in the W&GS department, and worked in a variety of philanthropic roles.


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