Labor Rule Is Latest Agency Action to Hit Judge Barker’s Buzzsaw

Texas federal judge J. Campbell Barker’s decision striking down the National Labor Relations Board’s joint employer rule is the latest in a string of defeats he’s handed to several federal agencies in his first five years on the bench.

Barker, 44, has also knocked down the Centers for Disease Control and Prevention’s Covid-era eviction moratorium, a Consumer Financial Protection Bureau effort to police discriminatory banking practices, and the Food and Drug Administration’s graphic warning labels for cigarettes. He voided the NLRB’s joint employer rule March 8 as overbroad.

First nominated by President Donald Trump in 2018 when he was just 38, Barker has emerged as a go-to judge for litigation against the power and reach of the administrative state.

“He is among the cadre of Trump district court judges who right-wing advocates look for to hear challenges to actions by Biden and administrative agencies,” said Elliot Mincberg, a senior fellow at People for the American Way, a left-leaning group that opposed Barker’s confirmation.

The Eastern District of Texas judge’s swift rise was fueled by his work ethic and intellect, according to former colleagues and supervisors. Barker has excelled in his legal career, and has the right demeanor to be a judge, they said.

“His temperament on the bench is what most litigators notice,” said R. Paul Yetter, who practiced with Barker at Yetter Coleman LLP. “He’s thoughtful, he listens, and he reads everything. He’s going to call them as he thinks the law requires.”

PFAW and other left-leaning advocacy groups protested Barker’s nomination based on his work as deputy solicitor general in Texas under conservative state Attorney General Ken Paxton. The Senate confimed Barker on a 51-47 party-line vote more than a year after he was first nominated.

Plaintiffs contesting agency actions have had a relatively easy time hunting for Barker because he’s one of two district judges stationed in the Eastern District of Texas’ Tyler Division. The federal judiciary’s administrative arm just last week issued a new policy that aims to limit that practice by randomly assigning lawsuits seeking to block federal or state actions to judges throughout a district.

Senate Republican leaders have already suggested that courts can ignore the new policy, however.

‘Step Above’

Critics see Barker as one of a squad of conservative Trump-appointed judges who have issued rulings against federal agencies. But his legal analysis is a “step above” some of those jurists who’ve handed down attention-grabbing decisions, like Judges Matthew Kacsmaryk in the Northern District of Texas and Terry Doughty in the Western District of Louisiana, said Dorit Reiss, a law professor at the University of California College of the Law San Francisco.

Barker’s 2021 decision axing the CDC’s eviction moratorium—he held that Congress couldn’t delegate that power to the agency—showcases Barker’s thoughtful analysis and “tricky” arguments, she said.

Barker navigated US Supreme Court precedent on the constitutional authority Congress has to regulate interstate commerce by saying the rental market is inherently local, Reiss said.

“Residential buildings do not move across state lines,” Barker wrote in his ruling. “And eviction is fundamentally the vindication of the property owner’s possessory interest.”

Barker’s reasoning ignored that people who move between states need housing as well, Reiss said.

The Supreme Court later struck down the eviction moratorium on narrower grounds, finding that the CDC lacked the authority to halt evictions. That difference in rationales makes Barker’s ruling seem more extreme, said Wendy Parmet, a law professor at Northeastern University.

“This decision feels like he reached out to go broad, reached out in a way that feels disrespectful to decades of precedent,” Parmet said. “It really does read like an exceptionally conservative, pre-New Deal decision.”

Barker declined an interview request.

Early Career

Barker switched his focus to the law after winning computer programming awards in his teens and graduating summa cum laude from Texas A&M University with a computer engineering degree. He earned his law degree from the University of Texas School of Law in 2005, graduating first in his class.

Barker held two consecutive judicial clerkships, working for Judge John Walker at the US Court of Appeals for the Second Circuit and then Judge William Bryson at the Federal Circuit.

He hit the ground running at the Federal Circuit and soon showed himself to be a very capable lawyer and good writer, Bryson said.

“Working with him was very easy,” Bryson said. “No prima donna aspect to him.”

Barker followed his clerkships with a stint as an appellate specialist in the US Department of Justice’s Criminal Division, which put him in a position to argue cases all over the country.

Houston-based litigation boutique Yetter Coleman was his next stop, where he worked on intellectual property and complex commercial cases. Barker impressed colleagues inside and outside the firm with his diligence.

“He’s one of the hardest-working people I know,” said Andrew Seger of Key Terrell & Seger LLP, who was co-counsel with Barker on a federal case involving a dispute between two beef producers. “When he’s got a task assigned to him, he doesn’t stop working. That might mean working until two or three in the morning, but he’ll get it done.”

Barker also took on pro bono cases during his time in private practice, highlighted by a victory at the Fifth Circuit on behalf of a Nepalese asylum seeker.

Varied Resume

When Scott Keller became Texas solicitor general in 2015, Barker “was the first person I thought of” to serve as his deputy, Keller said. The two met as young DOJ lawyers and practiced together at Yetter Coleman.

Barker’s leadership, work ethic, and attention to detail were well known and appreciated in the Texas SG’s Office, as was his enjoyment of puns and word-based jokes, said Keller, now an attorney at Lehotsky Keller Cohn LLP.

“Many of the assistant SGs appreciated the light-heartedness he brought to the office in the midst of working on important cases,” Keller said.

Barker’s move to the federal bench surprised friend and former colleague Robert Smith of Katten Muchin Rosenman LLP. Barker never discussed wanting to be a judge when the two were clerking for Bryson at the Federal Circuit, Smith said.

“It’s not like he set off on a path and positioned his career to be a judge,” Smith said. “As it turns out, he had a well-rounded career to be a judge.”