Judge Merrick Garland’s Whale of a Case

President Obama’s nominee to the Supreme Court recently decided a case against Sea World. There, the Occupational Safety and Health Administration proposed a $70,000 fine after a Sea World trainer was dragged to the bottom of the tank and drowned by Tilikum, a killer whale. ProfLERoy presents this interesting contrast between two powerful federal appeals judges, Judge Garland and Judge Brett Kavanaugh (who dissented)

JUDGE GARLAND: The record evidence showed that SeaWorld’s training and protocols did not prevent continued incidents, including the submerging and biting of one trainer in 2006, the killing of a trainer by a SeaWorld-trained and—owned killer whale in 2009 at an amusement park in Spain, and Ms. Brancheau’s death in 2010. SeaWorld employees repeatedly acknowledged the unpredictability of its killer whales. This record evidence supports the ALJ’s finding that existing protocols were inadequate to eliminate or materially reduce the hazard to SeaWorld's trainer employees performing with killer whales.

Abatement is “feasible” when it is “economically and technologically capable of being done.” After Ms. Brancheau’s death, SeaWorld required that all trainers work with Tilikum from a minimum distance or behind a barrier, and “waterwork” ceased with all of its killer whales. SeaWorld’s use of protective contact with Tilikum, the three-year moratorium on “waterwork” after Ms. Brancheau’s death, and repeated temporary cessation of “waterwork” with all killer whales or particular killer whales after other incidents support the finding that these changes were feasible and would not fundamentally alter the nature of the trainers' employment or SeaWorld’s business.

Given evidence of continued incidents of aggressive behavior by killer whales toward trainers notwithstanding SeaWorld’s training, operant conditioning practices, and emergency measures, SeaWorld could have anticipated that abatement measures it had applied after other incidents would be required. [RULING FOR OSHA]

JUDGE KAVANAUGH, dissenting:

Many sports events and entertainment shows can be extremely dangerous for the participants. Football. Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter's box against a 95 mile per hour fastball. Bull riding at the rodeo. Skydiving into the stadium before a football game. Daredevil motorcycle jumps. Stock car racing. Cheerleading vaults. Boxing. The balance beam. The ironman triathlon. Animal trainer shows. Movie stunts. The list goes on.

But the participants in those activities want to take part, sometimes even to make a career of it, despite and occasionally because of the known risk of serious injury. To be fearless, courageous, tough—to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk—is among the greatest forms of personal achievement for many who take part in these activities. American spectators enjoy watching these amazing feats of competition and daring, and they pay a lot to do so. Americans like to witness the thrill of victory, to cheer the linebacker who hammers the running back at the goal line, to yell with admiration as Derek Jeter flies into the stands down the left-field line to make a catch, to applaud the gymnast who nails the back flip off the balance beam, to hold their collective breath as Jack Hanna plays with pythons, to root on the marathoner who is near collapse at the finish line, to scream “Foreman” when the announcer says “Down goes Frazier.” And American spectators also commiserate during the “agony of defeat,” as immortalized in the Wide World of Sports video of a ski jumper flying horribly off course.

The broad question implicated by this case is this: When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves—that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?

[T]he bureaucracy at the U.S. Department of Labor has not traditionally been thought of as the proper body to decide whether to ban fighting in hockey, to prohibit the punt return in football, to regulate the distance between the mound and home plate in baseball, to separate the lions from the tamers at the circus, or the like.

In this case, however, the Department departed from tradition and stormed headlong into a new regulatory arena. The Department issued a citation to SeaWorld that effectively bans SeaWorld from continuing a longstanding and popular (albeit by definition somewhat dangerous) show in which SeaWorld trainers play with and interact with whales. The Department’s SeaWorld decision was upheld administratively by the independent Occupational Safety and Health Review Commission,1 and the majority opinion today affirms.

Whether SeaWorld’s show is unreasonably dangerous to participants and should be banned or changed is not the question before us. The question before us is whether the Department of Labor has authority under current law to make that decision—in addition to the authority already possessed by Congress, state legislatures, state regulators, and courts applying state tort law.