The Supreme Court Vacancy and Labor: Neil Gorsuch

Hannah Belitz

Hannah Belitz is a student at Harvard Law School.

This post is part of an ongoing series on the labor decisions and positions of some of the likely potential picks to replace Justice Scalia on the Supreme Court.

Neil Gorsuch currently serves as a judge on the United States Court of Appeals for the 10th Circuit. He was appointed by President George W. Bush on May 10, 2006 and confirmed just over two months later. As SCOTUSblog and numerous other outlets have pointed out, Judge Gorsuch may be “the most natural successor” to Justice Scalia, “both in terms of his judicial style and his substantive approach.”

Last August, Judge Gorsuch “made real waves in the normally sleepy world of administrative law” by advocating the end of the doctrine of Chevron deference. See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1158 (10th Cir. 2016) (Gorsuch, J., concurring). Writing a separate concurrence to his own opinion, Judge Gorsuch opined, “We managed to live with the administrative state before Chevron. We could do it again. Put simply, it seems to me that in a world without Chevron very little would change – except perhaps the most important things.” Id.

The following provides an overview of Judge Gorsuch’s opinions in cases involving the NLRB and employment discrimination.


Judge Gorsuch has issued the majority opinion in three cases involving the NLRB: Teamsters Local Union No. 455 v. N.L.R.B., 765 F.3d 1198 (10th Cir. 2014), Pub. Serv. Co. of N.M. v. N.L.R.B., 692 F.3d 1068 (10th Cir. 2012), and Laborers’ Int’l Union of N. Am., Local 578 v. N.L.R.B., 594 F.3d 732 (10th Cir. 2010). In all three, Judge Gorsuch upheld the decision of the NLRB; in one of those three cases, his decision was favorable to the union. Judge Gorsuch has also dissented in one NLRB case – NLRB v. Cmty. Health Servs., 812 F.3d 768, 780 (10th Cir. 2016) – in which the majority upheld the NLRB’s calculation of backpay damages, a decision that was favorable to the union.

Teamsters Local No. 455 involved an NLRB decision denying the Teamsters Union’s request to hold its employer’s lockout of employees unlawful because the employer had threatened to hire permanent replacement workers. See 765 F.3d at 1200. The NLRB had agreed with the union that the act of threatening to hire replacement workers violated the NLRA, but did not agree that the lockout itself was unlawful and thus entitled the union employees to backpay. See id. at 1202 (citing Harborlite Corp., 357 N.L.R.B. No. 151, at 1-2 (Dec. 22, 2011)). The union petitioned for review, and Judge Gorsuch rejected the union’s contention that “a previously lawful lockout becomes unlawful when a company threatens to hire not temporary workers but permanent ones.” Id. at 1202 (emphasis in original).

In Public Service Co., the Public Service Company of New Mexico (PNM) petitioned for review of the NLRB’s decision that it had engaged in unfair labor practices by failing to turn over information related to a termination grievance, and the NLRB cross-petitioned for enforcement. See 692 F.3d at 1072. The case centered on a narrow question about whether certain disciplinary information was “relevant” to the union’s processing of the employee’s grievance. Id. at 1073. Judge Gorsuch held that PNM, by failing to raise a number of its arguments before the Board, had forfeited its right to do so in the present case; and that with respect to those arguments that PNM had raised and preserved, the NLRB’s determinations were supported by substantial evidence.

In Laborers’ International Local 578 the union petitioned for review of an NLRB decision holding that the union had engaged in unfair labor practices when it persuaded the employer to fire an employee for failing to pay his union dues. The NLRB cross-petitioned for enforcement of the order. See 594 F.3d at 734. Although Judge Gorsuch intimated that were he in the role of deciding the case de novo, he would have ruled differently, he explained that “[i]n assessing such a challenge, we may ask only whether substantial, not uncontested or incontestable, evidence exists in the record to support the result the NLRB reached.” Id. at 739. Judge Gorsuch analogized his role to that of the “instant-replay booth in football: the call on the field presumptively stands and we may overturn it only if we can fairly say that no reasonable mind could, looking at the facts again, stand by that call.” Id. at 739 (internal citations omitted). Under this standard of review, Judge Gorsuch affirmed the decision of the NLRB.

In Community Health Services, in which Judge Gorsuch dissented, the NLRB petitioned for enforcement of its backpay order against a hospital that had been found to have unlawfully reduced the hours of some of its employees. See 812 F.3d at 770. The specific question centered on whether the Board could disregard interim earnings when calculating backpay awards for employees whose labor injury falls short of unlawful termination. See id. The majority held in favor of the NLRB and spoke repeatedly of the need for deference to agencies. Judge Gorsuch, by contrast, criticized the NLRB for exceeding “the boundaries of [its] congressional charter,” and argued that the court should not have deferred to the NLRB’s findings. 812 F.3d at 780.

Although three opinions and one dissent may be too few from which to extrapolate, it does appear that Judge Gorsuch may have become less deferential over time. In Laborers’ International, decided in 2010, Judge Gorsuch opened his opinion by explaining, “[W]e must affirm the NLRB’s decision so long as ‘substantial evidence’ exists in the record to support its findings. Our job isn’t to make the call ourselves, but only to ask whether a reasonable mind could have made the call the NLRB made.” 594 F.3d at 734. He then reiterated similar language throughout the opinion. See, e.g., id. at 739 (“So it is that we, like the instant-replay official, often affirm decisions that we might not have made ourselves.”); id. at 740 (“Under the substantial evidence standard governing our review of this case, we can insist on no more. We are required to look only for the existence of some evidence from which a reasonable mind could conclude as the NLRB did . . .”). Two years later, in Public Service Co., Judge Gorsuch explained, but only towards the end of the opinion, that it was the petitioner’s “burden to do much more than to reargue the facts. It must go a step farther and show affirmatively that the Board’s findings are one no reasonable mind could accept.” 692 F.3d at 1079 (internal citations omitted). Two years after that, in Teamsters Local, Judge Gorsuch agreed with the NLRB’s decision, but noted that “we [need not] evaluate the Board’s views on the matter or the amount of deference owed them.” 765 F.3d at 1203. Finally, in Community Health Services, the most recent case, Judge Gorsuch argued that the NLRB had exceeded its authority and therefore did not deserve deference. 812 F.3d at 780 (“I believe the NLRB’s new rule fails to abide . . . settled principles and, in that way, seeks to make new law unlawfully.”).

Employment Discrimination:

(Although Judge Gorsuch has issued numerous unpublished opinions in employment discrimination cases, this analysis covers only published opinions.)

Between 2007 and 2016, Judge Gorsuch issued the majority opinion in 14 (published) employment discrimination cases: 9 were favorable to the employer, 3 were favorable to the employee, and 2 were partial affirmances and partial reversals of the district court and, as a result, had both favorable and unfavorable effects for the employer and employee. None of these 14 opinions garnered a dissent.

Judge Gorsuch also issued two partial concurrences/partial dissents in the cases of Flitton v. Primary Residential Mortg., Inc., 614 F.3d 1173 (10th Cir. 2010) and Strickland v. United Parcel Serv., Inc., 555 F.3d 1224 (10th Cir. 2009). Flitton affirmed the district court’s judgment awarding attorney’s fees to an employee who prevailed in a Title VII retaliatory discharge claim. See 614 F.3d at 1175. Judge Gorsuch agreed with the majority’s analysis, but wrote separately to disagree with the majority’s holding that the district court lacked jurisdiction over the plaintiff’s request for appellate attorney’s fees. See id. at 1181. Strickland reversed and remanded a district court decision dismissing an employee’s action against the employer alleging sex discrimination and retaliation for utilizing the FMLA and sex discrimination. Although Judge Gorsuch agreed with the majority with respect to the FMLA retaliation, see id. at 1231, he disagreed that the plaintiff had established a prima facie case of gender discrimination in violation of Title VII because the record showed that the employer “harassed male employees in very much the same manner as he harassed [the plaintiff].” Id. at 1232.

In addition, Judge Gorsuch has issued one dissent and one concurrence: TransAm Trucking, Inc. v. Admin Review Bd., U.S. Dep’t of Labor, 833 F.3d 1206 (10th Cir. 2016) and Zamora v. Elite Logistics, Inc., 478 F.3d 1160 (10th Cir. 2007) (en banc), respectively. Both his concurrence and dissent reflected opinions that were favorable to the employer and shed some light on his jurisprudential views.

Judge Gorsuch’s dissent in TransAm, a case decided in favor of the employee, underscores his textualist views and distaste for Chevron. In TransAm, the majority denied an employer’s petition for review of a decision by the Department of Labor’s Administrative Review Board concluding that the company had fired an employee in violation of the whistleblower provisions of Surface Transportation Assistance Act (STAA). See 833 F.3d at 1208. In dissent, Judge Gorsuch criticized the majority for relying on Chevron to defer to DOL. See id. at 1216. He objected both to the fact that the litigants – with the exception of a footnote in one of the briefs – had not raised Chevron themselves and that the majority had determined the statute to be ambiguous, as he believed that the statute was clear and that it foreclosed DOL’s interpretation. See id. He also slammed the majority for looking beyond the text to legislative purpose. See id. at 1217.

Zamora underscores Judge Gorsuch’s preference for deciding cases on narrow grounds. In Zamora, a divided court (6-5) reversed a district court judge’s grant of summary judgment in favor of an employee suing his employer under Title VII. See 478 F.3d at 1162. Judge Gorsuch concurred in part with Judge McConnell’s concurrence in favor of the employer. See id. at 1168. He wrote separately to criticize both the majority and the dissent for addressing a legal question – the impact of IRCA’s anti-discrimination provision and its underlying policies on Title VII analysis – that he deemed unnecessary to deciding the case at-hand, as the plaintiff had not alleged a violation of the IRCA anti-discrimination provision. See id. at 1183-84. Judge Gorsuch emphasized that the court should not decide a “novel” legal question “without the benefit of detailed briefing from the litigants affected by our decision, a panel decision on point, or prior opinions from our sister courts.” Id. at 1184.

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