Wednesday Writs: Ketanji, I Barely Know Ye (But I’m Trying)

Photos of the 2020 Parsons Dinner, which honors a different distinguished African-American federal jurist each year.

So, I’ve been trying to get you a good, deep dive into the jurisprudence of our SCOTUS candidate Ketanji Brown Jackson. You may recall the expansive four-part series I did on Amy Coney Barrett way back when; I knew from the outset I didn’t have the time and bandwidth for something on that scale, but I thought I could get you something.

And I should be able to. But here’s the thing: unlike ACB, Judge Jackson has only two cases from her time on Circuit Court of Appeals, where she sat for only about 7 months before she got the SCOTUS nod. She authored only two opinions during that time, and neither are particularly noteworthy or interesting. They include a dispute between the AFL-CIO and the Federal Labor Relations Authority and one between a US defense contractor and the Iraqi government. Riveting stuff. Nevertheless, in the interest of due diligence I will provide a brief synopsis of each.

American Federation of Government Employees v. FLRA

This case involved a union for federal employees and their challenge to a September 2020 change in rules by the Federal Labor Relations Authority. Prior to the change, covered federal employers were required to engage in collective bargaining when making any management initiated change in working conditions that affected employees. For 35 years, the FLRA had defined this provision as covering any change that resulted in more than an “de minimis” effect on workers. After September 2020 the FLRA changed the standard to require collective bargaining only when a “substantial impact on a condition of employment” was involved. The union challenged that this change was in conflict with the governing statute and was “arbitrary, capricious, and contrary to law.”

The change had been made at the behest of the US Department of Ed and the Department of Agriculture, without soliciting public comment, on the grounds that the “de minimis” standard had been wrong all along, not concrete enough and leading to even “trivial” management decisions being subject to collective bargaining. The new “substantial impact” test, they argued, was “meaningful and determinative” and mirrored that of private sector unions.

The DC Circuit’s opinion, authored by Judge Jackson, found in the union’s favor. The Court did not discuss whether the new standard was contrary to the governing statute because it held that the FLRA’s new policy was “unreasoned.” Jackson cited precedent requiring the FLRA to show “reasoned decision making” and provide a “reasoned analysis indicating that prior policies and standards are being deliberately changed” and why.

The FLRA failed to do so, in Judge Jackson’s opinion. First, she notes, the FLRA contradicts itself by stating that the “de minimis” standard was unpredictable in its application and result and then arguing that the standard has led to all management decisions “no matter how small or trivial” being subject to collective bargaining. The standard cannot be simultaneously ubiquitous and unpredictably applied, Judge Jackson opined. Furthermore, she notes, the FLRA can point to multiple instances in which a change was found to be de minimis and not subject to collective bargaining.

The FLRA cited cases they described as having similar facts but leading to contradictory results. However, Judge Jackson points out that the cases were, in fact, quite different; one involved a permanent relocation of an employee’s workspace while another was only a temporary move, differences which Judge Jackson found easily reconcilable to their differing results (the former being subject to collective bargaining and the other dismissed as de minimis.) Citing other such examples proffered by the FLRA, Jackson found that the agencies own arguments actually showed clearly the de minimis standard working properly.

Next, Jackson disregards the FLRA’s contention that because it used the substantial impact standard for a brief period prior to adopting the de minimis test, the ensuing 35 years should be discarded as a policy mistake. She cites various rationales and analysis expressed by the NLRA over the years defending the adoption of the de minimis standard to counter their current argument that it was this lower threshold, not the new substantial impact test, which was unreasoned.

The FLRA argues that it just makes sense to use the same standard as that used by the National Labor Relations Board does in private sector labor disputes. Judge Jackson acknowledges that the FLRA is required to consider the NLRB’s precedent on analogous issues, but points out that the FLRA has taken care over the years to meticulously differentiate between itself and the private sector when they found themselves at odds.

Thus, the FLRA has held in the past that the relative substantive narrowness of the public-sector bargaining
mandated under the Labor-Management Relations Statute in fact supports the de minimis standard notwithstanding the NLRB’s more stringent bargaining threshold. See Dept. of
Health & Human Servs. Soc. Sec. Admin, 24 F.L.R.A. at 407. That conclusion is precisely the opposite of the one that the FLRA reached here. The agency now ignores its earlier balancing of the factors unique to public-sector bargaining and fails to address the reasons that it previously found persuasive when it decided to select a test that differs from the one that pertains to private-sector bargaining.

It’s not that the FLRA may not change its mind on the best way to deal with labor matters; it’s just that before they say “welp, we’ve been wrong for 35 years,” they’re going to need to provide a well-reasoned argument as to why they believe that is so:

…[t]he FLRA’s adoption of the substantial-impact threshold after it previously and specifically rejected that standard must be built on a more “solid foundation,” id., including an explanation of the agency’s view of why the new approach better comports with all of the provisions that Congress enacted to govern collective bargaining in the public sector.

With that, Judge Jackson vacated the FLRA’s September 2020 policy statement and rejected the de minimis standard.

So, what to make of this opinion by the likely future Justice? Two possibilities exist: One) she is a stickler for precedent and loathe to overturn it without extensive and thorough justification; or two) she is extremely pro-union and used a technical criticism (the arbitrary and capricious/insufficiently reasoned basis for the FLRA’s rule change) to find in their favor.

We’ll need to keep looking at her history to get a better idea of which. Moving on then…

Wye Oak Technology Inc v Republic of Iraq and the Ministry of Defense of the Republic of Iraq

Judge Jackson’s second and final decision from her stint on the DC Circuit Court of Appeals was also released in February 2022 but dates back the days of Iraqi reconstruction around 2004. Wye Oak was a Pennsylvania based defense contractor who, with a recommendation by Donald Rumsfeld, entered into a lucrative contract with the Iraqi Ministry of Defense to broker the recovery and salvage of military equipment left in the country, and arrange for the sale for scrap of that which could not be refurbished. In return, the Iraqis would pay Wye Oak 10% of the profit. Payments were to be made in US dollars. The Company generated invoices totaling over $24.7 million, which Iraq refused to pay.

There is a twisty, tragic, and interesting backstory about all this, involving espionage, corruption, and the violent death of Wye Oak’s CEO, but for present purposes, the important part is the dispute that arose from the country’s refusal to pay for the services Wye Oak performed. The company tried for months to collect and even attempted to obtain support from Rumsfeld before suing the Iraqi government and its Ministry of Defense in the federal district court for the Eastern District of Virginia.

The complaint was not filed until 2009 and claimed a breach of contract based on Iraq’s refusal to pay. The country responded with a motion to dismiss, claiming immunity from suit under the Foreign Sovereign Immunities Act. The Eastern District denied the motion but also determined the EDVA was the wrong venue, transferring the case to the District Court for DC.

While pending trial the Iraqis appealed the EDVA’s rejection of its immunity claims to the Fourth Circuit Court of Appeals, which oversees the EDVA (but not the DC District Court where the case was transferred to.) Despite the transfer to the DC district, the 4th Circuit found it had jurisdiction to review the lower court’s rejection of immunity. The Appellate Court upheld the EDVA’s ruling that immunity did not apply based on the relevant exceptions to the FSIA:

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the
States in any case—

(1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the
waiver;
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state
elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.

The EDVA’s ruling – and the Fourth Circuit’s upholding of it – was based on the second provision of section (2), that it involved an act performed in the United States in connection with activity of the foreign state. Specifically, the Court agreed with Wye Oak that its work in creating a computer program, performing accounting duties, and other functions to carry out its end of the contract were performed in the US, in connection with commercial activity of Iraq, satisfied the statute and provided an exemption to immunity.

With the Fourth Circuit’s ruling in hand, Wye Oak won the bench trial in District Court and was awarded nearly $178 million. The Court’s findings of fact in support of the judgment cited the Fourth Circuit’s ruling. The Iraqis appealed to the Court of Appeals for DC, which produced Judge Jackson’s second and final opinion.

The Iraqis argue that the lower court erred in adopting the Fourth Circuit’s finding that the exemption applied; Wye Oak of course argued that the exception did apply and that the DC Court of Appeals was bound by the Fourth Circuit’s determination that it did. Furthermore, claimed Wye Oak, the Iraqi government had waived its claim of immunity by not raising it in trial briefs. Judge Jackson’s opinion rejected the latter contention, pointing out that Iraq had raised its claim in its responsive pleading. Moreover, participation in the court proceedings could not be deemed an implied waiver unless the sovereign had “at some time indicated its amenability to suit.”

Far from demonstrating that it intended to waive sovereign immunity, Iraq squarely raised an immunity defense in a motion to dismiss that it timely filed at the first opportunity after Wye Oak filed the complaint, and it then vigorously litigated the EDVA’s denial of that motion, including pursuing a separate appeal of that court’s no-immunity ruling. To be sure, having lost that appeal, Iraq knowingly proceeded to litigate the claims against it… But nothing in the record establishes that Iraq ever disclaimed or withdrew its long-preserved assertion of sovereign immunity.

Turning to the commercial activity exception, Judge Jackson rejected the contention that the DC District court – and thus the DC Circuit Court – was required to accept the Fourth Circuit’s rejection of Iraq’s immunity claims despite what is known as the “law of the case doctrine.” The law of the case doctrine is “that a court involved in later phases of a lawsuit should not re-open questions decided . . . by that court or a higher one in earlier phases.” But this is a guiding principle, not a binding rule. Additionally, Judge Jackson pointed out that the posture of the case when the original ruling was made – from a motion to dismiss filed at the outset and prior to discovery and findings of fact – is much different than the posture post-trial. Therefore, Judge Jackson’s court could undertake its own review.

Too keep this brief, it is sufficient to say that Judge Jackson’s opinion disagreed with the conclusion that Wye Oak’s own stateside actions in furtherance of its agreement with Iraq was sufficient to trigger the exception to immunity from suit. Jackson concluded that the statute referred to action by the foreign state which occurred in the US, not by other parties, based on statutory construction, case law, and legislative history.

In the end, all was not lost for Wye Oak; Jackson finishes her opinion by positing that the third clause of the statute may apply to the facts and strip immunity from the Iraqi government in this matter. That clause refers to “an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” Jackson stops short of making a factual determination that the contract related actions by the foreign state which took place outside of the US had direct effects in the US, but allows that the facts certainly do not preclude such a finding. On that note, the case was sent back to the District Court for additional fact finding on that question.

So, what does this case tell us about Judge Jackson? In my view it is a rather dispassionate and straightforward analysis of the law and facts at hand. That’s an easy feat in a fight over contracts and money, but most non-lawyers are more interested in how potential justices handle the big issues in which it is almost impossible to avoid the appearance of taking a moral stand or choosing a side in cultural or political debate. Out of the two cases, the only plausible takeaway from a partisan viewpoint would be an accusation that Judge Jackson is pro-union, because she found in their favor on this one case.

Lower court opinions

Because Judge Jackson spent nearly all of her judicial experience as a district court judge, she spent a great deal of her time in mundane daily docket matters rather than crafting sweeping, voluminous opinions on substantive issues. There are hundreds and hundreds of “opinions” with Judge Jackson’s name on them that are basically three or four paragraphs granting relief or dismissing cases without much of anything resembling reasoning, as is routine. And she sat on the bench in a district in which people routinely sue the government. It may not surprise you to know that quite often, these suits are meritless, frivolous, and sometimes downright bizarre. I personally would be tempted to respond to each one with a laborious excoriation of their ridiculousness, but that is why (among many other reasons) I am not a federal judge.

So, I am in the position of sifting through 8ish years of opinions written by Judge Ketanji Brown Jackson in search of some substance I can review for you and frankly, I lack the time. At least, for now. I will work on it. In the meantime, please do take a few minutes to read and enjoy this delightful opinion in which Judge Jackson makes the US Postal Service look like the fools they were being in this particular case.