Despite my great respect for Seventh Circuit Judge Richard Posner (whose brilliant writings on legal theory have shaped much of modern jurisprudence), I have recently had occasion to criticize his conduct on the bench (here and here). I am afraid that an opinion this week raises yet another troubling example of poor judgment by Posner. In an opinion in Mitchell v. JCG Industries and Koch Foods, Posner included an account of an experiment by court staff that tested a core factual issue presented by the Plaintiffs — the time needed to change into work clothes. The reliance — to any degree — on such an experiment violates core rules of appellate review and is correctly identified by fellow Seventh Circuit judge Diane Wood as a highly disturbing element to the decision supporting the company. What is odd is that this experiment with “donning” and “doffing” only undermined an otherwise well-considered opinion (even though many would still disagree with its conclusion).
The case involved a claim from workers that they were entitled to overtime pay for the time it took to put on and take off their work gear during lunch breaks. The workers claimed that takes 10 to 15 minutes of their lunch break to change out of and back into the clothing and protective gear. The company insisted that it took only a couple of minutes. Such factual disputes are the domain of the trial court. Judge Robert M. Dow, Jr. of the United States District Court for the Northern District of Illinois granted summary judgment in favor of the company — a decision that is only possible when you assume all factual disputes in favor of the non-moving party. That would presumably include this factual dispute.
Posner however revealed that his staff decided to carry out their own testing outside of the record — a highly improper action. Rather than reprimand such ad hoc actions, Posner made the results part of the decision:
One of us decided to experiment with a novel approach. It involved first identifying the clothing/equipment that the defendant’s plants use and buying it (it is inexpensive) from the supplier. Upon arrival of the clothing/equipment three members of the court’s staff donned/doffed it as they would do if they were workers at the plant. Their endeavors were videotaped. The videotape automatically recorded the time consumed in donning and doffing and also enabled verification that the “workers” were neither rushing nor dawdling.
The videotape reveals that the average time it takes to remove the clothing/equipment is 15 seconds and the average time to put it on is 95 seconds. The total, 110 seconds, is less than two minutes, even though the “actors” had never worked in a poultry processing plant and were therefore inexperienced donners/doffers of the items in question.
It is not clear if the “one of us” refers to Posner or the other judge in the majority, Judge Michael Kanne. The majority was quick to note that “This was not ‘evidence’ —the intention was to satisfy curiosity rather than to engage in appellate fact finding.” However curiosity has a way of killing cats and opinions. There is good reason for an en banc decision throwing out this opinion on the grounds of this experiment alone. (While the conclusion may ultimately be upheld, the opinion has to be altered to remove this material and evaluate the basis for affirmation after its removal). It sure looks like fact finding to me. And pretty lousy fact finding despite the citation of a “videotape” with a time marker. More importantly, it clearly was relied upon by Posner and Kanne to
confirm common sense intuition that donning and doffing a few simple pieces of clothing and equipment do not eat up half the lunch break. . . . The intuition is compelling; no reasonable jury could find that workers spend half their lunch break taking off and putting on a lab coat, an apron, a hairnet, plastic sleeves, earplugs, and gloves. What a reasonable jury could not find does not create a triable issue of fact.
What is most bizarre is that you do not have to engage in this type of experimental work to support the conclusion of the opinion. It was as unnecessary as it was injudicious.
Wood spares little time in dissent in chastising Posner and Kanne.
I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a post argument experiment conducted in chambers by a judge. Ante at 9–10. As the majority concedes, this cannot be considered as evidence in the case. To the extent (even slight) that the court is relying on this experiment to resolve a disputed issue of fact, I believe that it has strayed beyond the boundaries established by Federal Rule of Civil Procedure 56. (This is quite different, it seems to me, from including an illustrative photograph whose accuracy presumably could not be contested.) I note as well that this experiment proceeded on the assumption that washing is not essential for workers handling raw poultry
I have long respected Wood and she is spot on with her criticism of the experiment. If anything, she is restrained in her criticism.
Just for the record, Rule 10 of the federal appellate rules state:
RULE 10. THE RECORD ON APPEAL
(a) Composition of the Record on Appeal. The following items constitute the record on appeal:
(1) the original papers and exhibits filed in the district court;
(2) the transcript of proceedings, if any; and
(3) a certified copy of the docket entries prepared by the district clerk.
Indeed, parties are often hammered for suggesting facts outside of the record. The rules state that “If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.”
It is also disturbing that the results of the videotape are simply described rather than making the video available for the review of the parties and the public. We are simply told that the court staff was neither “rushing nor dawdling.”
The inclusion of this ad hoc testing is a serious violation of appellate rules and should be addressed by the full court. It makes a mockery of the rules of federal practice and introduces an improvisational element to fact finding. The fact that two circuit judges would sign off on such an effort is shocking. As an Illinois bar member, I have great pride in the Seventh Circuit’s reputation for excellence. (Indeed, I will be speak at the Seventh Circuit conference in May). I have equal respect for Judge Posner and teach many of his theories in my torts class. However, this is truly beyond the pale and needs to be corrected by the entire court.
Source: ABA Journal
davidm2575
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In this case, I think the judge was applying some common sense that moves a little toward the periphery of the rules.
If the judge questioned this central issue, from the strictly technical perspective of what is proper, I guess he would have to remand it back to the trial court to get the answer. However, that wastes a lot of time and money …
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It is unwise to equate judicial illegality with common sense because judicial illegality is not “sense” it is nonsense, whether common or not common.
And if you think judicial illegality trumps cost, that is also unwise.
If you think control by legality is expensive, wait til you see illegality in control.
David,
Appellate review is limited to errors in the trial court…. Not recreating the case…. The trial court determines the facts…. As they apply to the law…. The court of appeals…. Makes sure they properly applied the law….. What’s so hard to understand about that….
Anon Yours wrote: “Appellate review is limited to errors in the trial court…. Not recreating the case…. The trial court determines the facts…”
I get that. As you know, I’m not a lawyer, but I do understand these basics.
My thinking, however, parallels the issue with the school boards that just follow certain policies without exercising common sense. In this case, I think the judge was applying some common sense that moves a little toward the periphery of the rules.
If the judge questioned this central issue, from the strictly technical perspective of what is proper, I guess he would have to remand it back to the trial court to get the answer. However, that wastes a lot of time and money when he could do some kind of testing himself to see the reasonableness of his judgment. He does not have to do it by way of introducing new evidence, because that would indeed be improper. But he could do it as a test of his own bias, could he not? Is this not better than just going with his gut without any testing whatsoever?
Sounds like Posner is acting like an eccentric uncle who says and does bizarre stuff @ Thanksgiving. Time to hang up the robe? We can time it.
I think the proper thing to do was to rule that summary judgment was inappropriate and send it back to the trial court for specific examination, saying there was insufficient evidence upon which the base such a conclusion. I do not oppose ad hoc experiments when something in the trial court record* appears to strain credulity. But the experiment should be done at the trial court so that there can be a rebuttal to the experiment. He should not have revealed the results of the experiment.
*Having worked as a lawyer in the federal administrative process at senior levels, decisions to prosecute or make certain rulings were occasionally aided by informal experiments as well as by commonly observed facts. They did not alter the final result because the defendant had a right to show its own evidence in a formal proceeding.
I’ll give you an example. Say the government suspects someone is being deceptive about a product. It asks the producer to substantiate its claims. The producer supplies evidence that looks weak or fishy and supplies the product per the government’s request. Staff tries the produce and it works. This will end the inquiry. Or if it is a technical claim (e.g., this pill aids weight loss) not subject to a quick experiment the staff will consult with a technical expert. The technical expert hired by staff says there is no basis for the claim. The staff uses this informal procedure to inform the person making the claim. Then the producer can decide whether or not to have a trial to go into the matter further. As a practical matter, sometimes this informal “put up or shut up” procedure lasts for many rounds.
davidm2575
It seems a little contradictory to argue he can’t introduce new evidence, then blame him for not providing the video.
I don’t see this experiment as introducing new evidence. It seems to me that the judge wanted to test his intuition or bias in the matter. His viewpoint was that it could not take so long to change clothes, so he tested his intuition rather than just ruling based upon it.
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The issue is whether the decision was one of law on the undisputed facts, or rather, whether the decision decided which disputed facts were the “correct facts.”
An appellate court is a motion court in an appeal of the grant of a summary judgment by a lower court.
Thus, they cannot decide which disputed facts are the correct ones because that violates due process of law (“nor be deprived of life, liberty, or property, without due process of law” – 5th Amendment).
Due process of law includes the right to a jury trial (“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” – 7th Amendment).
The dissent has the better view of the applicable law which requires that the state law be controlling if it is a more favorable law to the workers:
(Opinion and Dissent, PDF).
I don’t think Anne Frank is thought of as having been in a esoteric situation., as CA Laywer Attitude in spades seems to come from a blogger with a very odd personal beef about the chicken eating .lovers in this world. Chacun a son gout, When and where did you learn that your insult law is noteworthy ?
It seems a little contradictory to argue he can’t introduce new evidence, then blame him for not providing the video.
I don’t see this experiment as introducing new evidence. It seems to me that the judge wanted to test his intuition or bias in the matter. His viewpoint was that it could not take so long to change clothes, so he tested his intuition rather than just ruling based upon it.
Paul Schulte
dredd – if you read my statement carefully you will see we do not disagree, just phrase it differently. You more legally, me less.
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Cool.
I added a comment after the one you refer to, about how the decision could be procedurally correct, if the lower and appellate courts made a decision of law that “changing” is not covered in the applicable law.
Still, the decision could be in error as to whether or not the applicable law requires “changing” to be covered.
If the law does apply, then the Posner court erred, and the dissent has the correct opinion.
If the dissent has the law correct that “changing” is covered, still remaining would be the amount of overtime compensation merited.
Which is for the trier of fact since the length the “changing” reasonably takes is still a disputed material fact.
i am not an attorney, but…would he be considered and activist judge? should he be on the supreme court/
What would render the decision one of law, rather than an erroneous one that decided material facts in a motion for summary judgment scenario?
If, as a matter of law, the workers were not entitled to such compensation. Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876 (2014) … a case cited by judge Posner in the opinion, as he did Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209, 216 n. 4 (4th Cir. 2009).
The dissent argued that “changing” was covered under both applicable federal and state law (the more liberal law comparing state with federal, controls in this type of case).
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The lower motion court as well as the appellate court can render judgment as a matter of law that “changing” is not covered by either federal or state law, and the decision is valid.
I see that Paul thinks rules are for suckers. It is also obvious that the judges have never had to change clothes in an industrial environment as I have had to do. One does not simply strip down on station and then go to lunch. It takes time to walk to the change house, which in my case in the refinery would take at least five to ten minutes, then take off, wash, and put on other clothes. So absent any trial finding of fact, we have a flawed procedure to begin with, not to mention its contempt for law.
It is time to move for impeachment of these judges. THAT is the only way to improve their respect for the law.
randyjet – you have no idea what the judges did or did not do in their previous work history. I think the claim here is that it takes them 10-15 minutes to change, not to get there, wash, change, eat, change again and get back to station. Every work situation is a little different. When I was in my 20s, I worked on a printing press that was running 24/7. We could get an 8 hour day if we ate while the press was running or we could shut the press down and get a 7 1/2 day. We took the 8 hours. Washing up was a joke, since there was printing ink in your skin that would not come out for months. At best, you could take the globs off. Change clothes, forget it. Because the press was continually running and had to be tended to, it might take 60-90 minutes to actually finish what we ordered for lunch.
Paul, Glad you gave your views which PROVES that the “experiment” was if anything seriously flawed since it did not take into account the whole environment. This of course, dodges the main point which is that the judges SPIT on the law. They did something which was explicitly denied them. THAT should be grounds for impeachment at least.
AY – since school board officials are elected, they are covered by state law, not the board of education. The board of education sets curriculum minimums, teachers standards, etc. but the school board, elected by its citizens controls its school district. Only if it takes federal funds (and almost all do) does it have to follow NCLB or Race to the Top, and their authority is limited by federal legislation and federal regulation.
Frankly – have you never seen ’12 Angry Men’?
Justice is blind but it appears that in this case she could sure smell money. There are a class of folks that will not be happy until serfdom is returned. Sadly, too many on the court go out of their way to prove those folks have a good friend on the bench.
I wonder how the justice would rule were he to find out that a jury got together during the trial and “re-enacted” what they thought was a scene?
How else do you cover your stockholder-leaning prejudice, insulting the minimum wage worker while lapping a luxurious salary? Karma will get him, probably in the form of a quadruple bypass, after eating chicken prepared by the very workers he has so much contempt for. I hate greed so much!!!
Paul Schulte
Although I realize that the lower court is usually the trier of fact, in this case it appears that they did not. A summary judgment would make it appear they just accepted that it took that long to change clothes. Darren, I do not think it is based on supposition, since they re-created the dressing event with duplicate clothing. I will tell you my intellectual curiosity would have gotten the best of me, too. 10-15 is just way too long to take to change clothes. If you can’t do it in under 5 you are just dawdling. I think the summary judgment of the lower court was wrong and there had to be a way to rectify it. Posner found a way.
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Any federal district court is NOT the trier of fact in a motion for summary judgment scenario.
It is a motion court of law at that juncture, and cannot decide material disputed facts in such a motion scenario:
(Summary Judgment). What the appellate court did was to clearly show that there were disputed material facts precluding the grant of summary judgment by the motion court.
Thus, the matter had to be submitted to the trier of fact, a jury or the court sitting not as a motion court, but rather as the trier of facr (if a jury trial had not been demanded).
Posner’s a meandering self-absorbed crackpot. Far from worthy of the praise heaped on him. Character he’s got. Attitude and in spades. Pretty smart and a novel thinker, but his opinions are more esoteric than Anne Frank. Finally he’s coming loose at the fringes. More to come as proper retirement age grows smaller and smaller in his rear view mirror.
dredd – if you read my statement carefully you will see we do not disagree, just phrase it differently. You more legally, me less.
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CALawyer – what does “more esoteric than Anne Frank” mean?
Although I realize that the lower court is usually the trier of fact, in this case it appears that they did not. A summary judgment would make it appear they just accepted that it took that long to change clothes. Darren, I do not think it is based on supposition, since they re-created the dressing event with duplicate clothing. I will tell you my intellectual curiosity would have gotten the best of me, too. 10-15 is just way too long to take to change clothes. If you can’t do it in under 5 you are just dawdling. I think the summary judgment of the lower court was wrong and there had to be a way to rectify it. Posner found a way.
“There is good reason for an en banc decision throwing out this opinion on the grounds of this experiment alone. It sure looks like fact finding to me.” – JT
Indeed.
Also, the judicial rule is the mere “appearance of impropriety” rather than actual impropriety:
(Canon 2).
Let’s hope an en banc hearing cleans up this bad mistake.
And we have federal lifetime appointments for what…. Ditto Darren….. His majesty rules…..
The actions of the court in this incidence seems like a Star Chamber of sorts.
Much of the court staff’s re-enactment of the dressing event is based upon supposition and this is certainly not a role of this level of the court system.