When President Trump nominated Alex Acosta to be Secretary of Labor, we warned that his priority would be staying on the good side of the left, not advancing the administration’s conservative policy goals. We based our warning on his track record as head of the Civil Rights Division at the Justice Department, described here.
Even so, I would not have predicted that Acosta, as Secretary of Labor, would allow Obama holdovers to maintain exclusive control of the Department’s key Administrative Review Board, and thereby dictate how dozens of key statutes are interpreted.
Acosta has the right, at his sole discretion, to replace every one of the ARB’s members. Congress has no say. Yet a year into the Trump administration, every member of that body is a holdover from the Obama/Tom Perez Labor Department.
Excuse the mixed metaphor, but Acosta’s unwillingness to cut this low-hanging fruit makes a mockery of Trump’s promise to drain the swamp.
What is the function of the Administrative Review Board? According to its website:
The Administrative Review Board issues final agency decisions for the Secretary of Labor in cases arising under a wide range of worker protection laws, primarily involving environmental, transportation, and securities whistleblower protection; H-1B immigration provisions; child labor; employment discrimination; job training; seasonal and migrant workers; and federal construction and service contracts.
The Board’s cases generally arise upon appeal from decisions of Department of Labor Administrative Law Judges or the Administrator of the Department’s Wage and Hour Division. Depending upon the statute at issue, the parties may appeal the Board’s decisions to federal district or appellate courts and ultimately to the United State Supreme Court.
From this description several things are apparent. First, the ARB is, in effect, the Labor Department’s appellate court.
Second, its jurisdiction encompasses key areas of the law, including immigration. Indeed, the statutes it deals with (more than 40 in all) include the Immigration and Nationality Acts, Sarbanes-Oxley, Title VII of the Civil Rights Act of 1964, the Clean Air Act, the Federal Water Pollution Control Act, the Fair Labor Standards Act, and the Social Security Act. Thus, it is an important arm of the administrative state.
Third, the ARB makes its decisions on behalf of the Secretary of Labor. It is for this reason, I assume, that the Secretary has the absolute right to select and remove its members. All that’s necessary is a stroke of his pen.
The term of ARB members is two years. However, Department regulations provide: “Appointment of a Member of the Board to a term not to exceed a specified time period shall not affect the authority of the Secretary to remove, in his or her sole discretion, any Member at any time.” (Emphasis added)
In past administrations, the Secretary has not been bashful about exercising this power. I’m told that the Bush administration quickly replaced the ARB holdovers and that its holdovers were promptly shown the door by the Obama administration.
Acosta, though, has retained all of Tom Perez’s holdovers. The current members are: Joanne Royce (acting chairman), E. Cooper Brown, Tanya Goldman, and Leonard Howie. Each is a reliable left-liberal, as the bios suggest. Tom Perez placed Goldman and Howie on the Board during the dying days of the Obama administration.
Until recently, the fifth member of the Board, and its chairman, was Paul Igasaki. He’s a veteran “social justice” warrior. Acosta did not remove him. Rather, Igasaki left on his own. Acosta allowed him to serve for almost a year. From all that appears, he would still be serving had he not quit.
As a result of Acosta’s unwillingness to drain this swamp, the ARB has been issuing pro-leftist decisions non-stop, according to those who practice before it. I’m told that the plaintiffs’ bar, which probably can’t believe its luck, has been openly mocking the administration over this.
You can get a feel for how out-of-control the ARB is from the Sixth Circuit’s decision in Grand Trunk W. R.R. Co. v. United States Dep’t of Labor, 875 F.3d 821, 822 (6th Cir. 2017). In that case, the court declared:
Despite having had its position derailed by every federal court to date, the Department of Labor’s Administrative Review Board steams ahead. The Board interprets a retaliation clause in the Federal Railroad Safety Act (FRSA)—located in a recent amendment regarding “Prompt medical attention,” 49 U.S.C. § 20109(c)—to provide sick leave to all railroad employees for off-duty injuries and illnesses.
Another example can be found in BNF Railway Company v. United States Dep’t of Labor, 867 F.3d 942 (8th Cir. 2017).
Not every litigant can afford to take its case to a U.S. Court of Appeals. Many will settle to avoid the time and expense. Thus, the right of appeal to a federal court is insufficient to combat the leftist proclivities of the Obama/Perez ARB that Acosta has refused to disturb.
It’s a good thing I’m not practicing law these days. I wouldn’t relish explaining to a defendant client why, one full year into the Trump administration and after a drawn out proceeding before a liberal ALJ, its appeal will be heard by a board consisting exclusively of members selected by the Obama administration.
What is the explanation? It resides in Alex Acosta’s longstanding practice of appeasing the left. What is the source of that practice? It probably resides in his ambition for higher office, presumably a position on a federal court of appeals. By staying on the left’s good side, he can avoid strenuous opposition from Democrats down the road.
It worked when he was nominated for Secretary of Labor.
There is a clever cynicism operating here. Acosta understands that few conservatives pay attention to the ARB. Its lefty decisions may alienate this or that company and its counsel, but they are big boys and they move on.
The plaintiffs’ bar, by contrast, is intensely interested in the ARB — for good reason given its wide-ranging jurisdiction — and, as always, it has the ear of Democratic politicians. The path of least resistance, therefore, is to leave the Board undisturbed, at least until conservatives catch on.
When I learned of Acosta’s nomination, I predicted that he would “not act vigorously to reverse the excesses of the Obama/ Perez years.” When it comes to the ARB, I was wrong. Acosta has not acted at all to reverse the excesses.