Judge Ketanji Brown Jackson’s First Circuit Court Opinion

Judge Ketanji B. Jackson of U.S. Court of Appeals, D.C. Circuit is one of the potential replacements for Justice Stephen Breyer at the Supreme Court. She issued her first opinion on an argued case this week as a judge at that court. American Federation of Government Employees against National Labor Relations Authority. A unanimous panel overturned a Trump Administration policy restricting the kinds of workplace changes which require collective bargaining.

Here is how Judge Jackson sums up the ruling.

Certain federal employers must engage in collective bargaining when there is an management-initiated modification to “conditions of employment”.
employment affecting such employees.” Federal Service Labor-Management Relations Statute (5 U.S.C. § 7103(a)(12); see also id. §§ 7102(2), 7103(a)(14). Congress defines “conditions” to mean “personnel policy, practices, or matters”. . . “Affecting working conditions”, with some enumerated exceptions. Id. § 7103(a)(14). From the middle of the 1980s to the challenged policy statement, the Federal Labor Relations Authority (“FLRA”) held that these provisions required collective bargaining for any changes in workplace conditions beyond a minimal effect.

The FLRA established a threshold in September 2020 for collective bargaining. According to the new FLRA standard, collective bargaining is only required when a change in a workplace has “a substantial effect on a job condition.” U.S. Dep’t of Educ. 71 F.L.R.A. 968, 971 (2020). These are petitioners from public-sector labor organizations that challenged the FLRA’s decision of altering the bargaining threshold.

We believe that FLRA’s decision not to adopt its de minimis exemption in favour of a substantial impact threshold is arbitrary. This violates section 706 (Administrative Procedure Act), 5 U.S.C. § 706(2)(A). We thus grant unions their petitions to review the FLRA’s policy statements and leave them in place.

Most of the opinion focuses on a straightforward application of applicable administrative law principles. The opinion is clearer and more direct than Judge Jackson’s court decisions (which could be due to the requirement for trial courts make explicit factual findings). Progressive commentators have also given praises for the substantive outcome, which was a victory for public sector unions but a defeat for Trump’s Administration. This is an interesting coincidence: The opinion was published the same week that another contender for Breyer’s seat came under fire for not being enough pro-union and being too supportive of employers.

It isn’t surprising that the opinion concluded that Trump Administration failed to adequately explain the NLRA policy change. This has led to many Trump Administration policies being invalidated. However, I was surprised at the application of this opinion. FCC v. Fox Television The Trump Administration’s policy changes. It is usually deemed that this decision makes it very easy for an agency to modify its course. However, in this instance, the decision is part of what makes it possible to invalidate the Trump NLRA’s policy.

 Fox, The Supreme Court:

It is true that the agency must give a reasoned explanation of its actions. However, it would normally have to be aware that they are required. It is Change of position For example, an agency can not depart from a previous policy sub silentio You can ignore rules still in force or just disregard them. . . . Agency must also demonstrate that the reasons are valid. However, it does not need to show satisfaction with a court that the new policy is justified. Better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency Creds You can do it better. The conscious shift of direction is sufficient to indicate this.

(emphasis added in the original).

 AFGE v. NLRAJudge Jackson summarizes the test like this:

While the FLRA may “disturb its precedent,” it must “provide a reasoned analysis that indicates that previous policies were and are still valid.”
Standards are deliberately being changed.” AFGE 2020), 961 F.3d 457 (quoting). Fed. Emps. v. FLRA, 369 F.3d 548, 553 (D.C. Cir. 2004)).Also, the agency has to show “The new policy is allowed under the statute”, that it provides good reasons, and that it’s better than the old policy.FCC V. Fox Television Stations, Inc., 556, U.S. 502. 515 (2009).

This formulation does not include the Fox The court ruled that an agency’s conscious change of direction adequately demonstrated that it believes that this new policy is superior to the one they had previously adopted.  Was this true? Perhaps.

 AFGE v. NLRAJudge Jackson cites the NLRA as being negligent in explaining “baldly” its claim that its new standard will provide a “meaningful, determinative” way to determine when collective bargaining should be done. Citing FoxJackson ordered that the FLRA explain at the very least why the threshold for substantial impact was deemed “better” than the previous standard.
“Relinquishing” and its inability to do so were two of the reasons why we have decided not to support the Trump Administration’s policy.

Although this was just one of the deficiencies that the court identified in the NLRA’s explanation it might not have been conclusive. But it seems to be an erroneous, overly strict application. FoxOne more in line than Justice Scalia’s opinion to the Court is Justice Breyer’s dissension. For instance, in his Fox Justice Breyer had a different opinion.

It takes more than just stating the reasons for a new policy. The agency must also answer the question “Why did this change?” This question usually requires an agency to provide a better explanation than what would be satisfactory if the change was not in issue. A (imaginary administrator) might explain why he decided to drive on the right-side of the road. However, even though that reasoning for an explanation might seem rational, Initiation choice, that explanation is not at all rational if offered to explain why the administrator Changed Driving practice 25 years later, right-side-to-left-side.

This is an acceptable view and aligns with Judge Jackson’s opinions, however, it is not what the Court majority adopted. Fox. (Justice Kennedy’s Fox Some Court holdings were modified by concurrence, but Judge Jackson does not refer to his independent opinion.

Although it is possible for future decisions, such as Supreme Court’s DACA ruling to be more strict in reviewing the existence of reliance interest or other concern, Judge Jackson does not mention that decision. It is surprising that none of the other opinion judges (Pillard or Tatel), flagged the shift. Maybe Judge Jackson was honoring Justice Breyer’s approach to the judicial review agency policy changes prior to his departure from the High Court.