With the nomination of Judge Brett Kavanaugh to the Supreme Court, occupational safety and health professionals may be interested in the impact he may have on future cases involving OSHA, the Occupational Safety and Health Act, MSHA, and the Federal Mine Safety and Health Act. Judge Kavanaugh’s testimony before the Senate Judiciary Committee this week has shown him to be thoughtful and very well qualified (not to mention incredibly patient).  At this point, it seems apparent to all that he will soon be confirmed by the Senate.

In his opening statement, Judge Kavanaugh said that:

[m]y judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent. In deciding cases, a judge must always keep in mind what Alexander Hamilton said in Federalist 83: “the rules of legal interpretation are rules of common sense.”

This is as succinct and accurate a description of Judge Kavanaugh’s approach as any you are likely to see, and it does provide us with a decent sense of how he’ll approach his work on the Supreme Court. However, as Judge Kavanaugh told the Judiciary Committee, he advises people not to “read what others say about my judicial opinions. Read the opinions.” Judge Kavanaugh knows that what is said about his record matters much less than his actual record, and he is rightly proud of it.

Judge Kavanaugh’s record is quite extensive. Since his confirmation to the Court of Appeals for the D.C. Circuit in 2006, Judge Kavanaugh has handled more than 2,000 cases and authored more than 300 opinions. Over 100 of those cases involved administrative law issues. A handful involved OSHA.

Here’s a very short list of the relevant cases involving Judge Kavanaugh :

• Judge Kavanagh’s dissenting opinion in Sea World of Florida, LLC v. Perez is, perhaps, the most interesting of those he’s authored in OSHA cases. It has even been the subject of a few questions at the confirmation hearing.In SeaWorld, a two-judge majority of the D.C. Circuit expanded the scope of the Occupational Safety and Health Act’s General Duty Clause. It affirmed a violation of the General Duty Clause that OSHA issued for exposing animal trainers to drowning or other injuries while working with killer whales during performances. OSHA issued that citation (and others) after investigating the death of an experienced SeaWorld trainer during a live performance with a killer whale.

  The majority agreed with OSHA that SeaWorld knew that working closely with killer whales was hazardous and that SeaWorld could have done more to address that hazard.In his dissenting opinion, Judge Kavanaugh recognized OSHA’s position for what it was: an “unprecedented assertion of authority to proscribe SeaWorld’s whale show” that “departs from longstanding administrative precedent governing the extent of OSHA’s authority.” OSHA itself had, for the most part, previously declined to enforce its standards in the sports and entertainment industries. To justify its departure from long standing precedent, OSHA “irrationally and arbitrarily distinguished” the performances by the trainers SeaWorld from the performances by players in the NFL or drivers in NASCAR.Moreover, Judge Kavanaugh also recognized and clearly stated what should be obvious to all: Congress never intended OSHA to regulate sports and entertainment activities when it authorized OSHA to ensure safer workplaces. If your worksite is a pool you share with a killer whale or a race track behind the wheel of a car traveling at 200 mph, your worksite is definitely not “free from recognized hazards.”

  No doubt, certain “sports or entertainment activities raise concerns about the risk of injury to the participants,” but Congress did not authorize OSHA to address those concerns via the General Duty Clause. Judge Kavanaugh took no position on whether “work like driving a race car or performing with a killer whale should be subject to more stringent government regulation or liability, or otherwise should voluntarily make its activities safer.” Those are policy questions for Congress to decide, not the courts or OSHA.

• Johnson v. Interstate Management Co., LLC was (in part) an OSHA whistleblower case. Judge Kavanaugh wrote for the panel, explaining that Section 11(c)(2) of the Occupational Safety and Health Act “supplies a remedy for employees who believe they have been subject to retaliation for reporting a violation of the statute: An employee may complain to the Secretary of Labor. And the Secretary of Labor, after investigating the employee’s complaints, may sue the employer in federal court on the employee’s behalf.”However, “it does not expressly grant employees a private cause of action for retaliation claims. Therefore, the question is whether a private cause of action is implied by the statute. The answer is no.” This holding was wholly unsurprising. Since 1975, the Supreme Court has been hostile to implied causes of action, and Judge Kavanaugh and his two colleagues simply recognized that. Judge Patricia A. Millett, appointed by President Obama, agreed with Judge Kavanaugh, as did the third member of the panel.
• In the 2012 decision, Dayton Tire v. Secretary of Labor, a unanimous panel of the D.C. Court of Appeals held that the Secretary failed to establish that an employer willfully violated the cited OSHA standards. An Administrative Law Judge recognized that Dayton’s “actions were consistent with a good faith belief and effort to comply” with the cited standard. Nevertheless, the ALJ found that Dayton willfully violated the cited standard because OSHA had previously cited Dayton’s parent company for a similar violation.The Occupational Safety and Health Review Commission agreed that the violations were willful. However, it did not rely on the citation OSHA had previously to Dayton’s parent to support that finding. Instead, the Commission claimed that “over a period of years, Dayton consciously disregarded the cited standard by “operating . . . in a manner that was patently inconsistent with . . . the standard, and by failing to reexamine its” practices.On appeal, the three-judge D.C. Circuit panel simply applied its well-accepted standard for “willful” conduct and unanimously agreed that the violations did not meet that standard. It found that the Commission failed to “cite a single piece of evidence indicating that” Dayton “was actually aware, at the time of the violative act, that the act was unlawful.” Rather, the evidence demonstrated that Dayton “made some effort to ensure” compliance with the cited standard, and that was “enough to save Dayton from a willfulness determination.”
• Judge Kavanaugh authored two decisions in PHH Corp. v. Consumer Financial Protection Bureau (PHH), a case about “executive power and individual liberty.” The first is his majority opinion for the three judge panel, holding that the Consumer Finance Protection Bureau (CFPB) was unconstitutionally structured. Congress established the CFPB as an independent agency headed not by a multi-member commission but rather by a single Director” who “enjoys more unilateral authority than any other officer in any of the three branches of the U.S. Government, other than the President.” Judge Kavanaugh maintained that this “combination of power that is massive in scope, concentrated in a single person, and unaccountable to the President” violates Article II of the Constitution.

  Judge Kavanaugh’s second opinion was his dissent from the D.C. Circuit’s en banc decision to reverse the panel.   Although a majority of the judges agreed that the CFPB’s structure did not violate Article II, the court was badly divided, producing seven different opinions.  Judge Kavanaugh’s maintained that the CFPB’s structure was unconstitutional, and his dissenting opinion mirrored his panel opinion.

Overall, Judge Kavanaugh’s judicial record matches well with his description of his own judicial philosophy. His respect for the Constitution and the rule of law is apparent, and he is obviously committed to maintaining the separation of powers. His record on the D.C. Circuit indicates that, as Justice Kavanaugh, he will not hesitate to hold OSHA, MSHA and other administrative agencies accountable if they stray from their constitutional limits or statutory authority.