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
rafflaw
Judge Posner needs to sent down to the minor leagues.
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Yep.
The Triple A farm team.
Anonymously Yours
Dredd,
I agree with you…. But in this case… Poster went overboard….
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That is what I have been saying.
If the lower court, a motion court at that juncture, had clerks who did a video of themselves changing clothes like poultry workers do, without the knowledge of the legal counsel of the parties, then relied on that in any degree, it would be considered a circus of summary judgment jurisprudence.
Since the appellate court, in a summary judgment appeal, is to do what the lower court did, i.e. sit as a motion court, the appellate decision by Posner was a circus.
A “material fact” and a “disputed material fact” are often difficult concepts for those who have never done summary judgment practice, especially laypeople.
The name “Koch” in the list of parties has me a bit suspicious too. Posner and Koch go together like Twinkies and Coke.
rafflaw and dredd – you do not get to decide where Judge Posner goes. Unless he retires, dies or is impeached, he is there for life.
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dredd – would you like to elaborate on the great conspiracy between Koch and Posner? On a second note, have they started making Twinkies again?
After reading all the back & forth arguments – it seems to this taxpayer that the only one being treated shabbyly here is the American taxpayers. Now why would I say that ?
Of course, those of you who have practiced in the 7th Circuit know the name game which goes on with the poser who chooses not to pose. There are posers and posners. Never the Twain shall meet, even if Tom and Huck make it to Cairo.
What this invites is a Congressional statute which: 1) terminates ScaliaCare for all federal judges. Instead have them find their own health insurance at the private level and simply pay them the lowest possible premium less twenty percent.; 2) Pay judges for the time they have donned the robes until the time they take them off but no more than seven hours per day and no pay for lunch or recreation time; 3) Limit their pay to the same pay as that afforded zoo keepers at the Bronx Zoo.
mespo,
That makes too much sense! 🙂
PS: No person should be considered for a judgeship until they are at least 55 and serve no more than 15 years at most. That keeps new blood in the system, ensures experienced people in the decision-making process, and avoids robe-itis.
We need an age limit for federal judges and routine mental and physical health screening. Their job is too important for amateur sleuthing by sick, tired, and bored, old men.
I will become a vegetarian before i will buy meat from a company with such blatant disregard for its employees and the health of its consumers.
The disgruntled employees are handling the chickens and they probably don’t even have time to wipe after going to the bathroom.
Speaking to the issue of changing clothes- this is clearly a know-nothing timing “experiment”. In an industrial setting there is what is called “travel time” or “walking time”, i.e. one has to make their way to the changing area and clean themselves, change worker attire, and make their way to the lunch area. This is all repeated after lunch. In a animal processing plant, or a coal mine, this could constitute a significant distance, and accrue a lot of time. Judge Wood touches on the issue in the above excerpt, speaking to washing.
Dredd,
I agree with you…. But in this case… Poster went overboard….
Judge Posner needs to sent down to the minor leagues.
“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.” – JT
Some lawyers here have also suggested that an appellate court only reviews errors of the lower court.
That is not the case on an appeal from the grant of summary judgment.
To the contrary, review of a summary judgment is de novo.
In other words the record is tha same as the lower motion court used, and the exercise is the same: 1) are there any material disputed facts; 2) if so that ends it, send it back for the trier of fact to resolve; or 3) if there are no disputed material facts, can a judgment based upon applicable law be made on the record.
It would be considered a circus if the lower court had done what the appellate court did.
So, since the appellate court is considering the motion de novo, it is also a circus what the appellate court did:
Naficy v. Ill. Dep’t of Human Servs., 697 F.3d 504, 508 (7th Cir. 2012).
I think da judge needs to be examined for mental illness.
Paul,
I used it up on my trouser zipper…
… Can’t have anything slowing me down.
Max-1 – You can probably buy it buy the case at Costco or Sam’s Club. 🙂
This is the modern American blue-collar work place:
2 fifteen (15) minute breaks
1 unpaid thirty (30) minute lunch break
You are not allowed to take your break in your work area (that undermines “no sitting” policies). You must walk to a break area and that can easily take 3-4 minutes. Right there your 15-minute break just shrank to less than ten minutes. Adding just two minutes to that break process can mean that you spend more time getting out of your protective suit and walking than you do sitting in the break area where you often stand in line to use a vending machine.
When the inevitable revolution comes, people who wear ties for a living simply will not be able to comprehend how vicious and violent it will be. Their work is nothing like this. If you sit at a desk for a living, you can take a break any time you like. It’s called “thinking,” and they can only call you out for it if you do it too much. People who work with their hands have no such luxury, and are now closely monitored, their production held up against idealized standards. Those breaks are crucial to their physical and mental well being, especially as more and more workplaces go to ten-hour/four-day shifts which are more productive because you still only get two breaks and an unpaid lunch half hour.
And if we’re not at the breaking point yet, don’t worry, the MBAs are plotting their next assault on workers’ dignity even as you read this pathetically inadequate comment.
Mark Gisleson wrote: “This is the modern American blue-collar work place:
2 fifteen (15) minute breaks
1 unpaid thirty (30) minute lunch break
You are not allowed to take your break in your work area (that undermines “no sitting” policies). You must walk to a break area and that can easily take 3-4 minutes. Right there your 15-minute break just shrank to less than ten minutes.”
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The problem you highlight became an issue when the federal government mandated that any breaks less than 20 minutes must be paid breaks. I would love to let my employees just clock out and take breaks whenever they needed to do so. Unfortunately, the federal government makes that illegal. Instead I have to establish break policies and lunch policies that navigate around the established federal labor law. I assume that I have the unions and the Democratic Party to thank for that. Of course, I could always just keep paying my employees to just lounge around not doing any work, but the company could not sustain itself if it was managed in such a way. So we are stuck with this scenario you outline thanks to the blue collar advocates not being able to understand management principles.
What is that I hear? Oh yeah, it’s that familiar giant sucking sound of the money being vacuumed up by the 1%.
Invest in Tums, the workers are going to need them every day after scarfing down their lunch at record pace so they can get back out there on time and earn that 7 dollars an hour.
You know what I hate?
The times I’m rushing out the door and my coat zipper sticks.
What are those odds?
Judge?
Mark – it is clear since you are posting here that you do not have a blue-collar job. Or, if you do, you have the time to post here. Whichever, it is nice you are standing up for them. Still, you should realize that workplaces differ. Some are better than others. And some sit-down work is also production work – you have daily production goals. And frankly, I doubt the ‘inevitable revolution’ is coming. Still, I think you might try to start it and if you do I will go to the ramparts to oppose you. I will do my best to snuff it out in the early stages.
Max-1 – could I suggest oiling your zipper with WD-40?
randyjet – I think that at most the majority broke a rule probably set by some judicial conference. It is hardly grounds for impeachment. Obama, on the other hand, breaks laws all the time regarding Obamacare. Is that grounds for impeachment? Just asking?
Paul, I see that you do not read very well, since others have posted the law for judicial conduct and procedure. That is a long held and BINDING law. The case of Obama delaying implementation of his own sponsored law to address concerns of those who are being unintentionally hurt, is NOT the same at all. Unless you think that he should have just said TOUGH and strictly enforce the law. In short, you are insisting he implement a law that you hate, and then denounce him for acceding to your concerns. That is called heads I win, tails you lose. Get REAL!
randyjet – I read very well. If you go back to the original post you will see that they cited RULE 10 (not law 10) of judicial conduct and procedure. And that is not that longly held or that binding. You have no idea how often those rules are bent or broken. And federal judges can only be impeached for high crimes and misdemeanors. Breaking a rule is not one of them. At the worst he will get ‘bench slapped.’
Obama took an oath to uphold the law and he has constantly broken both his oath and the law. His job is to enforce the law not wiggle out of it if Democrats are going to lose elections. He and the Democrats wanted the law, they voted for it. They pay the price. Reap what ye shall sow. The sooner this law really goes into effect the sooner it will be overturned. Are you signed up, randyjet? Have you done your part in supporting Obamacare?
Sorry David…. I still don’t agree with you…. School boards policy are dictated in the most part by the state board of education….. They have very little interpretation….. Think GW…. No child left behind…. Another failed unfunded mandate …..