Rating Trump’s Nominees in Employment and Labor Law Cases

In late May 2016, Law360 asked me to review candidate-Trump’s shortlist of potential Supreme Court nominees. Law360 is a daily newspaper for lawyers and has sections similar to a regular newspaper. I wrote the following for the Employment and Labor Law section (under this title).

I reviewed five judges from the list. They might not even be on Mr. Trump’s list. Nonetheless, after researching these judges, I was impressed by their qualifications— even though I would not agree often with their rulings.

For readers who don’t want more detail, here is my conclusion.

Assessment: It is easy to see why conservatives would support these judges. Even in this brief survey, they evince skepticism of administrative rulings; favor the free operation of labor markets in contrast to judicial or administrative regulation; and one case demonstrates a high regard for personal liberties—even when it means siding with a probationary teacher over his school district employer. In sum, at this early juncture, these erudite judges appear to have little or nothing in common with their political patron, a bombastic loudmouth who defies ideological classification.

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As Donald Trump mutes his intolerance and vulgarity, he recently announced his possible Supreme Court nominees. Already, these judges get high marks from judicial analysts as mainstream judges with rock-solid conservative credentials. Less reported but important to know, the Heritage Foundation’s John Malcolm published a list of eleven potential nominees on March 30^th in the Daily Signal— a list that Trump has mostly cut and pasted in his highly ad hoc approach to institutional questions. Trump seems to be using a branding strategy by tailoring his list to a scholarly conservative group. If it is brilliant politically it also betrays his lack of commitment to, and understanding of, the judiciary.

The question I pose is: How do Trump’s nominees rate in employment and labor law cases? But first, some caveats. I will not vote for Trump. Second, my research sample is preliminary and focuses on five of the eleven nominees. With these disclaimers, I find that these judges are thoughtful, pragmatic, and somewhat libertarian in the following employment and labor cases. In these opinions, they appear more temperate than Justice Scalia.

Judge Brett Kavanaugh (D.C. Court of Appeals): This important court was at its best in SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014). Judge Merrick Garland wrote the majority opinion in a fascinating case upholding OSHA’s fine against SeaWorld for failing to comply with the general duty clause under the Occupational Safety and Health Act. OSHA acted after a whale trainer, Dawn Brancheau, was killed in a pool by Tilikum during a performance before a live audience. Based on SeaWorld’s history of killer whale injuries to its employees, Judge Garland found that the agency had reasonable grounds to impose its fine.

Judge Kavanaugh’s dissenting opinion is thoughtful, provocative—and reflects a libertarian soul.

At the same time, it conflicts with Chevron deference to agency expertise. Judge Kavanaugh wrote: “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.”

He observed that “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.”

Judge Kavanaugh’s legal analysis said: “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.” He believed the agency exceeded its authority.

Judge Steven Colloton (8^th Circuit Court of Appeals): Judge Colloton wrote an impressive and highly consequential decision in Brady v. National Football League, 644 F.3d 661 (8th Cir. 2011). Recall that NFL players, after a failed strike in 1987, decertified their union and successfully sued the NFL for damages and equitable remedies in the Minnesota district court. Judge Doty’s 18-year hegemony over this collective bargaining relationship was out of touch with Judge Ralph Winter’s superior understanding of the antitrust labor exemption in National Basketball Ass’n v. Williams, 45 F.3d 684 (2d Cir. 1995). As I noted in a Tulane Law Review article in 2012 (see http://www.tulanelawreview.org/narcotic-effect-of-antitrust-law-in-professional-sports-how-the-sherman-act-subverts-collective-bargaining/), Judge Doty’s flawed approach “addicted” players to antitrust litigation by relieving them of the pain of negotiating concessions during regular labor-management negotiations. Serious students of labor law know that federal courts must stay out of the collective bargaining relationship and leave the parties to their own devices.

In Brady, the district court in Minnesota enjoined the NFL’s lockout of players after the CBA expired. This was a legal victory for the lead plaintiff, Tom Brady. The core issue was whether the Norris-LaGuardia Act divested the district court from enjoining the NFL’s lockout. That law—the product of immense frustration by labor unions with the propensity of federal judges to enjoin their lawful strikes, boycotts, and pickets— all but removed federal jurisdiction in labor disputes.

Brady’s position was that Norris-LaGuardia applied only to court interference with a union’s use of economic weapons. Wanting to have his cake and eat it, too, Brady said that district court had jurisdiction to enjoin the NFL’s reciprocal version of a strike— a lockout.  

Judge Colloton dismissed this reasoning in these terms: “A one-way interpretation of § 4(a)—prohibiting injunctions against strikes but not against lockouts—would be in tension with the purposes of the Norris-LaGuardia Act to allow free play of economic forces and to withdraw federal courts from a type of controversy for which many believed they were ill-suited and from participation in which, it was feared, judicial prestige might suffer. We are not convinced that the policy of the Act counsels against our textual analysis of [NLGA] § 4(a).”

Judge William Riley (8^th Circuit Court of Appeals): In Gibson v. Caruthersville School Dist. No. 8, 336 F.3d 768 (8th Cir. 2003), this conservative judge wrote impassioned dissent in support of a probationary teacher who was denied reappointment after a student alleged that this instructor grabbed him by the throat. The teacher exercised his right to a name clearing hearing in a public proceeding. However, after adjournment in the hearing, the school district refused to allow him to continue with his public defense. The lower court denied the teacher’s petition for a hearing on his non-renewal; and the appeals court affirmed.

Judge Riley put a heavy emphasis on procedural due process for public employees in this closely reasoned dissent: “The majority rejects what can be reasonably inferred from the facts: the District had no intention of giving Gibson the opportunity to tell his side of the story, and used available procedural means to effectuate its goal. Following the opening hearing round, the District tried to obtain a settlement and a release from Gibson. When that attempt failed, the District closed a critical portion of the public hearing. When Gibson resisted and filed a petition for writ of prohibition to keep the hearing open, the school board voted against renewing Gibson’s teaching contract. . . . Once the school year ended, the District advised Gibson’s attorney that the termination issue was moot and completion of the hearing was unnecessary.”

Framing this in constitutional terms, Judge Riley reasoned: “The Supreme Court has declared the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed [and] ... the denial of procedural due process [is] actionable for nominal damages without proof of actual injury.”

Judge Thomas Hardiman (3d Circuit Court of Appeals): In an important decision, EEOC v. Allstate Insurance Co., 778 F.3d 444 (3d Cir. 2015), Judge Hardiman wrote a unanimous opinion that ruled against Allstate’s former employees. As the company reorganized its business to de-emphasize employment of agents, it gave these employees four options: conversion to independent contractor, a buyout with an interest in their sales account, and two severance pay plans. To execute an agreement, employees were required to sign a release of all claims against Allstate. The EEOC sued for 6,200 agents, alleging that the waiver requirement was unlawful retaliation in violation of Title VII, ADA, and ADEA.

Affirming the lower court, Judge Hardiman ruled that Allstate’s offer to permit terminated employees to convert to independent contractor status was sufficient consideration for the employees’ release of claims against employer; and the employees’ refusal to sign a release was not a protected activity. At the core of this mainstream ruling, Judge Hardiman’s opinion stated that “the EEOC here fails to articulate any good reason why an employer cannot require a release of discrimination claims by a terminated employee in exchange for a new business relationship with the employer.” He added: “We acknowledge the Commission’s concerns about the prospects of employers trading releases for new business opportunities and terminated employees facing ‘financial pressure’ when offered such a deal. But the EEOC fails to explain why this financial pressure is more offensive to the antiretaliation statutes than the pressure one is bound to feel when required to sign a release in exchange for severance pay.”

Associate Justice Allison Eid (Colorado Supreme Court): Justice Eid’s dissenting opinion in City of Brighton v. Rodriguez, 318 P.3d 496 (Colo. 2014), mirrors a growing trend of employer-friendly worker compensation rulings that narrow the “scope of employment” and “arising out of” predicates for a worker’s recovery.

After Helen Rodriguez, a city administrator, talked with co-workers at the top of a stairway at her office, she walked downstairs and fell suddenly. The steps were dry and clear. She did not trip, slip, or lose her balance; nor was she dizzy. At the emergency room, doctors found that she had four unruptured aneurysms on the right side of her brain. Eventually, she had surgery for these aneurysms. At a worker’s comp hearing, a medical specialist for the city testified that the “most likely” cause of Rodriguez’s fall was a fainting or dizziness episode caused by her aneurysms, although he could not state this conclusion with a reasonable degree of medical probability.

One legal issue was whether the claimant’s personal conditions were so far removed from conditions of work that her resulting injuries were outside the scope of employment. Another issue was whether the injury was caused by a “neutral risk”— a factor not associated with employment or the person. In Colorado, examples of compensable neutral risk-injuries include homicide by car thieves while the employee returns from a work errand and death of a farm-hand by a lightning strike while tending to his employer's horses.

The majority classified Rodriguez’s injury in the neutral risk category— a compensable category— stating that an “unexplained fall is necessarily caused by a neutral risk. Because Rodriguez’s fall would not have occurred but for the fact that the conditions and obligations of her employment—namely, walking to her office during her work day—placed her on the stairs where she fell, her injury ‘arose out of’ employment and is compensable.”

Justice Eid dissented. She faulted the majority for “placing her unexplained fall on equal footing with ‘neutral risks’ like car thieves, lightning bolts, or stray bullets. These risks are not merely neutral, however; they are also known.” She continued: “The majority’s error, however, is to expand the concept of ‘neutral risks’ to include injuries that occur at work where the cause is not known. Such an unexplained injury is not categorically ‘neutral,’ as the majority would have it. Rather, an unexplained injury defies categorization…. Unlike an injury resulting from a known, neutral threat, an unexplained fall by definition does not establish causation, and therefore cannot satisfy the claimant’s obligation to demonstrate that an injury arose out of employment.”

Assessment: It is easy to see why conservatives would support these judges. Even in this brief survey, they evince skepticism of administrative rulings; favor the free operation of labor markets in contrast to judicial or administrative regulation; and one case demonstrates a high regard for personal liberties—even when it means siding with a probationary teacher over his school district employer. In sum, at this early juncture, these erudite judges appear to have little or nothing in common with their political patron, a bombastic loudmouth who defies ideological classification.