Working for Justice

Judge Merrick Garland and Class Actions: What Will Happen?

The recent big news in lawyer land is the nomination of Chief Judge Merrick Garland of the US Court of Appeals for the D.C. Circuit to replace Justice Scalia. He is, by all appearances, eminently qualified, a model public servant, and at least a tad (I say in jest) to the left of the late Justice Scalia. That should be good news for advocates of workplace equality. So, I set out to do a little research on this point.

SCOTUSblog has a great summary of Judge Garland’s jurisprudence. When it comes to civil rights, it notes that “Judge Garland has not been called upon to decide many civil-rights-related claims of great significance.  It is difficult to label him as inclined either towards or against such claims, given that the panels on which he sat in such cases were generally unanimous.”

SCOTUSblog has an excellent wrap up of Judge Garland’s civil rights cases. But it doesn’t touch on one issue near and dear to my heart and to the firm at which I work: class actions. Many commentators have noted that in recent years, class actions have had few enemies worse than Justice Scalia. He authored decisions permitting big companies to require consumers and businesses to arbitrate claims on an individual basis (a huge problem for plaintiffs, as my colleague Danielle recently explained) and imposing a higher bar on employees seeking class certification in discrimination cases.

So what do Judge Garland’s decisions reveal about his views on class actions? Not too much it seems. A search for class action cases authored by Garland yields few hits, and many of those decisions do not even speak to class actions.

Of those that do speak in any depth about class actions, the most recent is a prisoner case in which the prisoners “violated District of Columbia criminal laws before March 3, 1985” and argued that “the United States Parole Commission contravened the Ex Post Facto Clause of the Constitution by retroactively applying parole guidelines that it issued in 2000.” Interesting stuff, but the applicability to employment law is not obvious.

Of somewhat greater import, in 2003, Judge Garland authored a decision holding that grocery baggers at U.S. Military commissaries should have brought their claims for minimum wage and overtime violations in the Court of Federal Claims, where certain claims for money against the federal government are heard, instead of in the District Court for the District of Columbia, where they had filed their lawsuit. Again, however, the case is not that helpful to understanding how Judge Garland might view a future employment class action.

Likewise, in 2007, Judge Garland authored an opinion holding that the Drug Enforcement Agency had violated a stipulation resolving a 1977 lawsuit for racial discrimination. In that case, African American DEA sued the agency alleging that agents in a host of ways, including in pay, promotions, and discipline. The trial court determined that the agency had been discriminating, and the Court of Appeals agreed, so the parties stipulated to a settlement. Nonetheless, in 2003, the Agency tried to renege on the stipulation. Judge Garland ruled that it could not. The result is thus not that insightful on Judge Garland’s views on class actions generally.

Other cases have involved a dismissal for lack of jurisdiction, a determination that the Washington Metro Area Transit Authority was subject to suit for disability discrimination, and a determination that United Airlines passengers who had accepted compensation could not file suit seeking further compensation for lost baggage. None are particularly illuminating of how Judge Garland might rule in a future case.

The jury is still out on Judge Garland’s views on class actions. Justice Scalia’s influential opinions in this area came in 5-4 decisions, so even an incremental shift could be enormously influential. Advocates for workplace equality will be hoping for this and for much more.

Russell Kornblith

Russell Kornblith

Russell Kornblith is the New York Managing Partner who works on both qui tam / whistleblower cases and on discrimination cases. Learn More

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