Battling Dissentals and Concurrals over Doffing and Donning on the 7th Circuit

May 28th, 2014

The 7th Circuit, one of the most agreeable courts in the land, has been divided over a case I have blogged about at some length, concerning compensation for the time it takes poultry-workers to doff and don their protective gear. In Mitchell v. JCG Industries, Judge Posner to satisfy his curiosity, conducted a judicial fashion show to time how long this process took. In dissent, Chief Judge Wood criticized this “experiment.”

Plaintiff filed a petition for rehearing en banc, and the 7th Circuit called for a response.

Now, the 7th Circuit has denied the petition for rehearing en banc. But it was divided. Chief Judge Wood, and Judges Rovner, Williams, and Hamilton voted to rehear the case, and Judge Williams issued a 7-page dissental. Not to be outdone, Judge Posner issued a 12-page concurral.

As Judge Posner noted, on the 7th Circuits such en banc battles are rare:

 Published opinions dissenting from denials of re- hearing en banc are rare; published opinions concurring in denials of rehearing en banc are virtually unheard of. But this case merits such an opinion in view of assertions and omissions in the opinion dissenting from the denial of re- hearing en banc that relate both to the appropriateness of the case for rehearing by the full court and to the grounds of the panel’s decision.

Citing the 7th Circuit Handbook (!), Posner claims en banc review here is ENTIRELY unwarranted.

It should go without saying that mere disagreement with a decision by a panel of the court is not a sufficient ground for rehearing en banc. Otherwise every case in which the panel was divided could provoke a petition for rehearing en banc and a call by the dissenting judge for a vote on whether to rehear the case en banc. Unremarked by the dissent is that there are standards for granting rehearing en banc, and for obvious reasons they do not include: “I disagree with the panel majority.” The Seventh Circuit’s Practitioner’s Hand- book for Appeals states that “‘an en banc hearing or rehear- ing is not favored and ordinarily will not be ordered unless (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decision, or (2) the proceeding in- volves a question of exceptional importance.’ Fed. R. App. P. 35(a).” The handbook goes on to state that “rehearings en banc are designed to address issues that affect the integrity of the circuit’s law (intra-circuit conflicts) and the develop- ment of the law (questions of exceptional importance).” And there is more: Rule 35(b)(1) requires a petition for rehearing en banc to “begin with a statement that either: (A) the panel decision conflicts with a decision of the United States Su- preme Court or of the court to which the petition is ad- dressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to se- cure and maintain uniformity of the court’s decisions; or (B) the proceeding involves one or more questions of exception- al importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative de- cisions of other United States Courts of Appeals that have addressed the issue.” The Advisory Committee’s Note to Rule 35 also stresses intercircuit conflict as a basis for rehear- ing en banc.

None of these criteria for rehearing en banc is satisfied in this case or even mentioned by the dissent.  

It’s a walk-off!

Beyond these procedural intrigues, the judicial fashion show makes a few cameos.

The dissental alludes to the “experiment,” noting that it was not consistent with Rule 56:

By ex- plicitly rejecting Appellant’s affidavit and accepting the em- ployer’s time estimation (and confirming that with a court staff “experiment”), the majority ignored the evidence in the light most favorable to the employees and therefore did not conduct the proper Rule 56 analysis. In the light most favor- able to Appellant, how long it took to don and doff was an issue of fact that should have been decided by a jury.

To illustrate that en banc was not warranted, Posner notes that he did a Google search of “references to the panel decision.”

A Google search reveals a number of references to the panel decision (many critical of the “experiment” conducted by court staff in that case regarding the time it takes to don and doff the sanitary gear that poultry workers are required to wear) but nothing to suggest that the decision involves an issue of general importance.

Ahem. I think he is talking about me. And, apparently, he thinks nothing in my post suggests that this decision involved “an issue of general importance.” Of course it did. That’s why I wrote about it, and it spawned so much outrage across the blogosphere, including posts from Scott Greenfield,  Garrett Epps, Jonathan Turley, and many others (not to mention inspiring a dissental from 4 out of 10 active judges on his Court).

Posner doubles down with this jab later in the opinion.

One point remains to be considered, as it figures not only in the petition for rehearing en banc and in the dissent from the denial of rehearing en banc but also in some of the online commentary on the panel decision.

Again, that would be me, and Scott, and Garret, etc. Way to citeblock Judge Posner  (and I will define citeblock as going out of your way to deprive someone of a citation, even though everyone knows you’re citing him). I’ll also note Judge Posner’s inclusion of the photograph of the banana costume, “which is in the record,” as an indirect citeblock.

Posner continues to explain, at some length, why his “experiment,” was not only proper, but necessary.

The petition denounces the experiment conducted by “unidentified members of the judiciary” (these villains are my law clerks and I), which it states violates due process and the Federal Rules of Civil Procedure. As the panel decision explains, the information produced by the experiment was not “evidence,” was not “appellate factfinding,” but was the fruits of curiosity re- garding the appellants’ implausible (in fact unbelievable) contention that it takes 15 minutes to don a few items of protective clothing. Although called “changing clothes,” the donning and doffing by these poultry workers involve not changing clothes but just putting some items of protective clothing, like an apron and a hair net, on top of one’s street clothes, and removing the same items. No way can that take 15 minutes.

 Judge Posner is “puzzled” why the dissental objected to his “experiment.”

I am puzzled finally by the dissent’s remark that “how long it took to don and doff was an issue of fact that should have been decided by a jury.” My puzzle is: how is such a fact to be determined by a jury? Suppose one worker testifies (as per Mitchell’s affidavit) that it takes 10 to 15 minutes to don and doff, and another (one aligned with management, for remember that the exclusion of donning and doffing time from compensable time was by agreement between union and management) testifies it takes 2 minutes. How is a jury to decide between them? Probably the most accurate way to resolve the dispute would be, on the model of the criticized experiment by court staff, to videotape workers doffing and donning. The problem is that the workers aligned with the plaintiffs would dawdle, and the workers aligned with man- agement would practice doffing and donning until they broke the speed record. What would the jury do? This is somewhat to the side of the issue of the case, but illustrates the important point that determining facts in a litigation can be devilishly difficult if one thinks accuracy important. 

Imagine that? How is a jury to determine a fact? Impossible. It’s better for an appellate judge to do it. “Determining facts in a litigation can be devilishly difficult.”

That settles that.

H/T @Greg51