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A Justice Garland Could Benefit Employees At High Court

Law360—Vin Gurrieri

President Barack Obama on Wednesday tapped moderate Judge Merrick B. Garland of the D.C. Circuit to fill the vacancy on the U.S. Supreme Court left by Justice Antonin Scalia, an appointment that experts say could favor employees because of Garland's reputation for deferring to agencies such as the National Labor Relations Board.

Garland, who served on the D.C. Circuit for 19 years before receiving the high court nomination, including the past three years as chief circuit judge, has weighed in on various employment law disputes during that tenure, including many cases involving the NLRB, U.S. Department of Labor and other federal agencies.
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"In the labor and employment arena in particular, Garland has tended more often than not to defer to federal agency decisions," Lotito said. "It is often up to the courts to determine how much deference to accord such agency decisions. Because Garland has shown a willingness to uphold agency positions in contested cases, [that] indicates he could wind up providing the crucial swing vote if confirmed to the high court."

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... Judge Garland penned a partial dissent in a 2009 case involving FedEx Home Delivery Inc. He broke from the majority's finding that certain of the company's delivery drivers were rightly classified as independent contractors and not employees, a ruling that overturned the NLRB's determination that the drivers qualified as employees.

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In a lengthy partial dissent that ran longer than the majority's opinion, Judge Garland said that the board's determination should have been entitled to deference, even if that meant the majority panel would have had to affirm a position they wouldn't have reached by reviewing the case fresh on appeal.

The judge cited the Supreme Court's Chevron standard, which grants significant deference to federal agencies in interpreting ambiguous laws.

"The common-law test [for determining employee status] may well be 'unwieldy,' but a court of appeals may not 'displace the board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo,'" Judge Garland wrote. "While the NLRB may have authority to alter the focus of the common-law test, [under] Chevron, this court does not."

But Judge Garland didn't side with the board entirely in that case, saying it didn't give FedEx "a fair opportunity" to make its case because the company wasn't allowed to introduce evidence about whether its drivers had significant entrepreneurial opportunities. He said he would have remanded the case back to the board for further proceedings.

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Paul Mollica of plaintiffs firm Outten & Golden LLP also highlighted Judge Garland's reputation of according respect to agency findings, adding that agency deference has been "a long, hard-fought issue" among judges in both the D.C. Circuit and the Supreme Court.

"He is a meticulous, careful and thoughtful jurist who is not inclined to issue broadly stated decisions," Mollica said. "I expect him to apply the same principles of deference to federal agencies and the same fidelity to Congress' intent of enforcing laws that protect employees."

A Justice Garland could also potentially take a more narrow view of arbitration clauses than did Justice Scalia, who in 2011 authored the opinion for a five-justice majority in AT&T v. Concepcion holding that the Federal Arbitration Act preempts state bans on class action arbitration waivers. 

Such clauses have become a contentious issue that has left the NLRB at odds with various appellate courts, especially the Fifth Circuit.

The board has ruled in its D.R. Horton and Murphy Oil decisions that arbitration agreements barring workers from pursuing class actions for their labor law claims were unlawful. The Fifth Circuit has nixed both decisions, and the Murphy Oil decision is currently headed to a potential en banc rehearing. Should the board unsuccessfully request a rehearing or if other circuits confronted with the class waiver issue rule differently than the Fifth Circuit, the matter could find its way to a Justice Garland on the high court.

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