I previously blogged about Judge Posner’s judicial fashion show. In a case that concerned how long it took to put on and take off protective gear, Judge Posner took the fact-finding into his own hands by holding a fashion show in chambers. His staff doffed and donned the gear, and Judge Posner recorded it. This story was picked up by the ABA Journal, and got a a lot of play in their weekly email.
The attorney representing the plaintiff haw now filed a petition for rehearing en banc.
Here is the relevant portion of the brief:
Finally, the majority found that donning and doffing during the half‐hour meal break was de minimis as a matter of law based on “information”1 gleaned from an “experiment” conducted in chambers by a judge and three unidentified members of this Court’s staff.2
2 No aspect of this experiment is a matter of record, including when or exactly where it was performed, who was present, the videotape generated, the methodology used, the identities of the participants (called “actors” by the majority) or what instructions they received and by whom. Of course, having never received notice of the Court’s intention to conduct an experiment, counsel for the parties were not present and apparently neither was dissenting Judge Wood. What role, if any, counsel would have played in such an experiment is unclear, as presumably the Court would not permit examination of its members or staff.
The brief raises both due process and Rules of Civil Procedure violations:
In what the dissent characterized as a “startling” event, the majority found the clothes changing here was de minimis based solely on unannounced, unchecked and unchallenged experiments performed by unidentified members of the judiciary in chambers following oral argument.3
3 The Constitutional due process implications of the majority’s decision to not only consider but actually create “information” outside the record in contravention of the plain dictates of the Federal Rules of Civil Procedure is staggering. Pointing to this Court’s opinion, trial courts can expect to be inundated with invitations to perform similar fact‐finding experiments, both announced and unannounced, and with or without the consent of any or all parties.
The brief argues that the “unilateral judicial investigation” was inappropriate and unnecessary:
This is so despite the admitted existence of a heavily‐disputed factual issue concerning the amount of time required for the unpaid work: Plaintiffs estimate it requires approximately 10‐15 minutes to perform all the tasks at issue, including washing, which Defendants contend was not relevant and therefore, did not provide their own estimate, (D.E. 87 ¶ 18, R. 853). Conducting a unilateral judicial investigation – particularly on a key issue left to the trier of fact – is simply not appropriate, contravenes the Federal Rules, and indeed, is inconsistent with the role of the judiciary in our legal system. See Costello v. Flatman, LLC, 2014 WL 929008, at *1 (2d Cir. Mar. 11, 2014) (summary order); Fed.R.Civ.P. 56; Fed.R.App.P. 10(a).
Further, Judge Posner’s experiment failed to account for the fact that in the kitchen, there was only one sink, and 200-300 workers had to share it.
Highlighting the problems inherent with conducting judicial experiments to resolve hotly‐contested fact issues, the majority failed to account for a slew of facts impossible
to replicate in a judge’s chambers, not the least of which were that at the meal break (after taking the gear off), the employees had to store it for reuse, travel to a sink to wash and because there were 200 to 300 employees (D.E. 87 ¶ 5, R. 848‐849) and only one sink, wait in line to wash. (D.E. 87 ¶ 19 response, R. 853). Thus the majority’s surprise experiment failed to include inter alia:
1. time spent on storage of gear after taking off;
2. the meal period wash up time;
3. the travel time to wash up; and
4. the wait time to use the sink to wash up.
I agree with the brief that this issue should have been subject to discovery and fact-finding in the district court. Not judicial fact-finding on appeal.
Because no discovery was allowed, a contentious, material dispute exists regarding the amount of time expended has been ignored by the majority opinion including gear storage, the travel to wash up, the waiting time to use the sink to wash up, the actual washing time before the meal, and other related activities discovered through the discovery process.
While I am not allowed to file an amicus brief in support of rehearing en banc, I am inclined to pursue one here if en banc review is granted. Though, perhaps the best way to resolve this fashion dispute is a Walk-Off, Zoolander style.