Monday morning musings for workplace watchers

Judge Alex | Latest on ALJs | Mexican Death Threats

Chris Opfer: Brett Kavanaugh’s Supreme Court confirmation hearing last week brought some renewed speculation about Labor Secretary Alex Acosta’s potential pathway to becoming a judge. We reported earlier this year that some folks think Acosta is keeping a relatively low profile because he has one eye on the bench. If Kavanaugh’s seat on the D.C. Circuit Court of Appeals opens up, might the former U.S. Attorney Acosta get the nod?

“It is 100%, unequivocally untrue,” Labor Department spokesman Jeff Grappone told me when I asked about that that Acosta may be up for a judgeship. “It should not even be printed.”

Here’s why it’s not likely, for now: The D.C. Circuit is a primo landing spot. The court is often considered “first among equals” at the federal appellate level and a launch pad for a potential Supreme Court seat (see Kavanaugh, John Roberts, Merrick Garland). A wide variety of jurists inside and outside the Beltway will be angling to get their names in the mix.

Several sources have told us Acosta is interested in a judgeship and is said to be on various Republican groups’ lists for a court seat. What we don’t know is whether anyone inside the White House is pushing to make that happen. An appointment to this particular court would be a pretty big step up for Acosta, who was originally slated to serve as labor solicitor to Andy Puzder before that nomination went up in flames. The 11th Circuit, which has seats in Acosta’s hometown of Miami, may be more attainable.

Here’s why it’s possible: Don’t underestimate the importance of good friends. Acosta has a very powerful ally in Leonard Leo, the Federalist Society chief and kingmaker credited with orchestrating several of President Trump’s most important judicial picks. Some business lobbyists who aren’t happy with Acosta’s deliberative pace at the Labor Department may also like to see him move one door down, from the Frances Perkins Building to the E. Barrett Prettyman U.S. Courthouse.

Plus, I’m the guy who said Mark Pearce wasn’t likely to get another term at the National Labor Relations Board. I wouldn’t count that deal—now said to include moving a “broad base” of other Trump nominees—done until there’s an actual floor vote on Pearce’s confirmation. But it’s certainly more proof that anything can happen with this administration.

Trump’s pick for the Kavanaugh seat probably doesn’t need to be fitted for a black robe anytime soon. The Senate has been considering appeals court nominations in the order they were announced. Given the D.C. Circuit’s smaller-than-most caseload, filling that position probably won’t be a priority.

Bloomberg Law’s Hassan Kanu has more on this and other news of the week in the Punching In podcast. Terminal readers can find it here: https://soundcloud.com/bloombergbna/punching-in-september-10-2018

Jaclyn Diaz: And while we’re thinking about black robes, let’s talk administrative law judges.

The Labor Department recently announced it will bypass the Office of Personnel Management in picking its in-house judges, giving Acosta more say on ALJ hiring. This followed the president’s executive order empowering the heads of all federal agencies to appoint the agency’s judges directly instead of going through the OPM.

(Some ALJ trivia for your next dinner party: The DOL has the third largest administrative law judge office in the federal government, with some 41 judges. Altogether, there are at least 1,900 ALJs in the federal government.)

Now Sens. Susan Collins (R-Maine) and Maria Cantwell (D-Wash.) are seeking to undo Trump’s order with a new bill. So far, the legislation has the backing of the Association of Administrative Law Judges, the union representing these jurists. It says the White House has no grounds for changing the appointment process.

The AALJ hopes the Collins-Cantwell bill will pass, but getting there before the end of the year might be a long shot. The group also hasn’t ruled out litigation, Marilyn Zahm, president of the AALJ, told me. Zahm is also an administrative law judge. She hears Social Security cases in Buffalo.

“I don’t know at this point if I can say definitively if we ruled it out, but we prefer to go the legislative route. Litigation is always chancy,” she said.

CO: In more courtroom news, the Justice Department has two weeks to decide what to do with a potentially huge Supreme Court transgender discrimination case. The Equal Employment Opportunity Commission convinced a federal appeals court last year that a Michigan funeral home violated a sex discrimination ban by firing a worker who said she was transitioning to a female. But the DOJ says the Civil Rights Act of 1964 doesn’t currently prohibit gender identity bias. SCOTUS has yet to decide whether it will take up the funeral home’s challenge to the ruling.

The question is whether the Justice Department will allow the EEOC to participate in the case. Solicitor General Noel Francisco asked the court for an extension to respond to the funeral home’s request for the justices to consider the case. Since then, it’s been crickets from the DOJ. The EEOC’s litigation authority ends at the appellate level: the commission has to get Justice’s blessing to file a brief or participate in oral arguments at the Supreme Court.

Tyrone Richardson: What’s in a name? Apparently enough for a change if Democrats regain control of the House this midterm.

Rep. Bobby Scott (D-Va.), the ranking member of the Education and the Workforce Committee, is eager to tweak the panel’s name if given the chance. Scott recently told me that he “absolutely” would add the term “labor” back to the committee moniker. Republicans in 2011 re-branded the committee, which for much of its life was known as the Committee on Education and Labor.

Scott’s eagerness to rename the panel also hints he’s planning to become chairman if Democrats take over and that Democrats would want to shift the focus to organized labor.

CO: As NAFTA 2.0 negotiations continue, United Steelworkers lobbyists are trying to draw U.S. lawmakers’ attention to worker safety issues in Mexico.

Workers at a Goodyear tire plant in Mexico have been getting death threats for speaking up for their rights on the job, USW legislative representative Roy Houseman recently told me. The workers—who in April staged a one-day strike to oppose what they say are low wages and poor conditions—are part of what the USW says is a growing list of blue-collar employees south of the border who put their lives in danger by exercising labor rights. Two protesting workers were reportedly shot and killed at a gold mine near Acapulco late last year.

“The ability of labor unions to ensure labor violations are addressed in trade agreements is a serious objective for the labor movement,” Houseman said.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us: copfer@bloomberglaw.com, jdiaz@bloomberglaw.com, and trichardson@bloomberglaw or on Twitter: @ChrisOpfer, @JaclynmDiaz, and @TyRichardsonPC.

See you back here next Monday.

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