D. Brooks Smith:  
Denying Equal Access to Justice

Introduction

The judicial record of Pennsylvania district court judge D. Brooks Smith, President Bush’s nominee to the US Court of Appeals for the 3^rd Circuit, raises serious concerns about his commitment to equal justice for all.  Beyond his predilection for corporate-funded junkets to desirable places, discussed in an accompanying memo, he displays, through many of his judicial decisions, a bias in favor of corporate and other powerful interests over those of ordinary Americans.  Judge Smith has been reversed numerous times by a relatively conservative 3^rd Circuit[1] in the areas of employment and prisoners’ rights, women's rights, environmental protection, and consumer safety.  A careful look at the decisions for which he has been reversed reveals a judge who will distort or ignore the law to reach his desired result, and more generally, a judge who does not take seriously the role of the federal courts in ensuring that all Americans have the same access to justice.  

It should be noted that this analysis of Judge Smith’s record is based only on his published judicial opinions.  Several reversals listed on his Senate Judiciary Committee questionnaire are of unpublished decisions, suggesting that there is a large number of unpublished opinions overall that must be reviewed for an adequate analysis of his judicial record.  The Committee has apparently requested these unpublished opinions.  

In light of the significant number of and reasons for Judge Smith’s reversals by the 3^rd Circuit, his confirmation to that court would be particularly troubling.  Because the Supreme Court chooses to review very few lower court decisions, the federal appellate courts are the final word in the vast majority of cases.  The opportunity for guaranteed review of Judge Smith’s decisions would be gone if he were elevated to the appellate court.

Cases and Reversals  

This memo details Judge Smith’s record of dismissing cases brought by individuals seeking to protect their rights with regard to such fundamental concerns as employment, consumer safety, and civil rights.  That he was subsequently reversed in a significant number of these cases leads inevitably the conclusion that he is not simply a judge who leans conservative, while generally adhering to precedent and the rule of law, but rather one who misstates the law in order to reach the desired result, which too often is a dismissal of an individual’s claim against the government or a powerful corporate entity.

Gender Discrimination

In two cases, Judge Smith’s interpretation of the law and the constitutional standard for deciding a gender discrimination complaint raise serious concerns about his ability and willingness to grant justice to those wronged.

In Quirin v. City of Pittsburgh,[2] Judge Smith interpreted the law in a way that placed a greater burden on the city to justify rules remedying past discrimination than to justify rules that permitted the use of such discrimination.  Until 1972, the City of Pittsburgh had not allowed women to apply to be firefighters, so it adopted a hiring policy to “overcome the effects of past discriminatory hiring practices.” Judge Smith applied the strict scrutiny standard, which the Supreme Court reserved for cases of discrimination on the basis of race, ethnicity, and religion, to a rule established to remedy past gender discrimination, and struck it down on that basis.  In doing so, he not only made it nearly impossible for women to obtain a just remedy for past discrimination, he ignored historic Supreme Court precedent in this area.[3]  

In a case against a school board, a male teacher filed a lawsuit challenging defendant school board’s family leave policy, which entitled women, but not men, to one year of unpaid leave for childbirth “or childrearing.”[4]  Based on his view that the policy was primarily intended to address pregnancy, which only women experience, Judge Smith granted summary judgment to the School Board.

The 3^rd Circuit reversed, finding the policy to be in violation of the father’s Title VII rights.  Because the benefit was designed to allow for raising children and not only giving birth, it required no “showing of a continued disability related to either pregnancy or to the delivery of a child.”  The court recognized that denying the father such benefits would reinforce the myth that childrearing, and not just giving birth, is the mother’s job:

If mothers can have childrearing obligations immediately upon the birth of their child, then fathers also are entitled to exercise the option of using childrearing leave immediately upon the birth of their child.   It does not mean that fathers are entitled to sick leave or disability benefits, but under the law, childrearing by a mother or childrearing by a father should be on the basis of full parity.[5]

Consumer Safety

In several of the cases described in this memo, Judge Smith has interpreted laws very narrowly to help corporations in suits brought by individuals.  In one such suit, Metzgar v. Playskool,[6] three Reagan appointees reversed Judge Smith’s dismissal by summary judgment of a claim involving the death by asphyxiation of a 15-month-old child. 

Matthew Metzgar’s parents sued Playskool after he choked to death on a “purple half-column Playskool building block,” claiming, among other things, that the manufacturer had failed to warn parents of the dangers associated with small children playing with the toy, which had been marked appropriate for children ages 1 ½ to 5 years old and had no warning labels.

Judge Smith granted summary judgment in favor of Playskool on all counts.  He held that: although the risk of choking was foreseeable, “the historical risk” is too small to sustain a cause of action for negligent design and manufacture; Playskool clearly did not intend a 15-month-old to use the product, since the label said 18 months; the product was not defective, as it did not possess a feature rendering it unsafe for its intended use; and the risk of danger of a small child choking on it was so obvious that no warning was necessary.  These conflicting points – that the risk was both too low to render the product defective and too obvious to merit a warning – put plaintiffs in an impossible situation.

The Circuit Court reversed Judge Smith and remanded for trial on all of the Metzgar's claims.  It also voiced strong disagreement with Judge Smith’s findings in several of these areas, stating, for example, that it was, “troubled by the district court’s summary judgment disposition of the plaintiffs’ negligent design and strict liability design defect causes of action.”

It pointed out that Judge Smith relied only on data from that specific toy to find no risk, but eleven children per year die from choking on small toys, and an average of 3,200 per year are treated in emergency rooms for toy-related ingestion and aspiration injuries.[7]  The 3^rd Circuit also found that, a mere three months younger than the age Playskool recommended, Matthew was an “intended user” of the toy, since Playskool considers developmental stage in making the age suggestion. 

On the separate issue of whether the company should have warned caretakers of the danger of choking, the court found Judge Smith’s decision that the risk was too obvious to merit a warning not a proper matter for summary judgment and remanded for a jury to decide.[8]  Overall, the many grounds on which Judge Smith granted summary judgment showed his willingness to distort the law’s logical meaning in order to rule in favor of the corporation.  

Employment and Workers’ Rights

In other cases favoring corporations, Judge Smith has employed interpretations of laws that lack support to dismiss suits brought by wronged employees.  In Ackerman v. Warnaco,[9] Judge Smith granted summary judgment to Warnaco, Inc. with regard to several claims brought by a group of 169 former employees.  The employees had all worked at the company’s Altoona , Pennsylvania fashion apparel plant, and they had received the 1988 employee handbook, which contained details on severance pay for employees laid off through no fault of their own. 

Warnaco changed its severance policy but did not inform the Altoona employees, either orally or in writing, before shutting down the Altoona plant in early 1991 and terminating its employees over the course of the year.  After Warnaco refused to provide the promised severance payments, the employees filed suit, claiming ERISA violations – violations of the federal law that provides retired employees with rights – and demanding the severance pay originally promised.  Judge Smith granted summary judgment to Warnaco, not even allowing plaintiffs’ claims to be heard by a jury.

On appeal, a three-judge panel composed of one Bush and two Reagan nominees found Judge Smith’s decisions to be in error.  They disagreed, first, with his holding that, while changes in a benefit plan require the ERISA amendment procedure, a total rescission of those benefits does not, and remanded for further review, also providing directions for the review. 

The court was also troubled by Judge Smith’s decision that, even if the company had failed to comply with amendment requirements, that omission did not give plaintiffs a cause of action, and it noted that he had misrepresented a former 3^rd Circuit ruling in order to support this decision:

According to Warnaco and the district court… a complete rescission of a welfare benefit plan does not implicate the requirements [that a company give proper notice].  We are unpersuaded by such reasoning.  As a preliminary matter, our decision in [that case] has been reversed by the United States Supreme Court… More important, however, in this passage we were merely describing an argument of the employer.  We were not setting forth a rule of law or even providing persuasive dicta.[10]

In Warnaco, plaintiffs had submitted evidence – including the company’s failure to hold the scheduled meetings to inform them, its vague references to “changes” in the policy rather than its elimination, and its failure to distribute the new handbook – that Warnaco intentionally concealed the change to keep employees from leaving prior to the closure of the plant.  The appeals court found that there was enough evidence that the company had intentionally concealed the change to allow the case to go to trial and ruled that Judge Smith’s pre-trial dismissal was wrong.  In this case, Judge Smith chose in several instances narrow interpretations of the law that allowed him to reach a result that was good for the company.  

Judge Smith was also reversed in another ERISA case, in which he essentially denied the plaintiff access to justice.  In this case, the 3^rd Circuit – two Reagan appointees and a district court judge sitting by designation – ruled that he was wrong to deny the plaintiff attorneys’ fees after acknowledging that the employee had a right to pension benefits that had been denied him by employer Shenango Inc.[11] 

Charles E. Ellison had worked in various capacities for Shenango Inc. and its parent company, Shenango Furnace Co., from 1951 to 1986, when the company was bought out and Ellison was asked to resign.  Ellison was awarded pension benefits, but, after internal debates, the company later decreased and then revoked them. 

Ellison appealed, and Judge Smith granted him benefits but no attorney’s fees, citing Ellison’s “bad faith.”  The 3^rd Circuit reversed on this issue, stating that, “[t]o the extent that it was proper for the district court to consider Ellison’s actions in order to determine whether the Plan’s response to them was made in good faith, we believe its finding that Ellison acted in bad faith is clearly erroneous.”  In other words, given Judge Smith’s ruling in Ellison’s favor, Ellison could not possibly have acted in bad faith, yet Judge Smith was willing to deny him the attorney’s fees necessary to bring the case, which would prevent future plaintiffs from bringing such cases.  

Another case demonstrates perhaps the strongest evidence of Judge Smith’s tendency to dismiss legitimate complaints by individuals and to manipulate the law so as to achieve the desired result.  In Wicker v. Consolidated Rail Corp, rail workers had sued “Conrail,” their former employer, under Federal Employers' Liability Act (“FELA”), alleging that years of illegal dumping of toxic substances on the job site had made them sick.  The FELA had been enacted specifically to abolish or modify a host of common-law restrictions that had been used to bar railroad workers from recovering for work-related harms. 

Prior to filing suit, the employees had complained of the dumping to the state Department of Environmental Protection, which confirmed the allegations and ordered the company to conduct a multi-million-dollar clean-up operation.  Judge Smith threw out all the suits brought by workers who had signed a general release of liability that was part of a settlement agreement over unrelated, injury claims against the railroad.  He noted that the releases “contain language which, on its face, relieves the defendant from future liability for any type of damage or harm suffered by the plaintiffs while in the railroad’s employ.”  Ignoring the plain language of the FELA, Judge Smith rejected the plaintiff’s argument that these were contracts of adhesion – i.e. that plaintiffs were forced to sign them – asserting that the plaintiffs had been represented by attorneys and that the releases were negotiated at arm’s length.[12]

A three-judge panel of the 3^rd Circuit, consisting of two Reagan appointees and one Clinton appointee, unanimously reversed Judge Smith.[13]  Looking at the plain statutory language and binding Supreme Court precedent, the appeals court ruled that, “the releases signed by the parties violated Sec. 5 because their purpose was to settle all claims regardless of whether the parties knew of the potential risks.”  Had Judge Smith’s ruling stood, it would have essentially nullified a critical statute enacted to protect railroad workers from precisely this type of harm. 

Four months later, Judge Smith again ruled harshly against the employees; he refused to admit expert testimony from the chief pathologist of a local hospital, who was prepared to testify that exposure to toxics had killed another plaintiff, John Shane.  Judge Smith distinguished the evidence in this case from that in a nearly identical Conrail case decided by the Third Circuit, in which the court stated that FELA’s liberal standard on causation “can significantly influence a determination of the admissibility” of testimony and that “jury determinations were intended to be part of the FELA remedy.”[14]  

Judge Smith has also shown an unwillingness to grant coal workers their legitimate rights and to protect them from corporate manipulation in two cases concerning the Coal Industry Retiree Health Benefit Act (the "Coal Act").  In one case, Unity Real Estate Co. v. Hudson,[15] Judge Smith found that the law itself, as applied in this case, amounted to an unconstitutional taking.

In order to ensure a steady supply of workers who would be willing to labor under dangerous conditions and allow coal companies to make a profit, the companies signed a series of agreements with United Mine Workers of America (UMWA), promising to pay lifetime health benefits for longtime workers.  When the companies began to go bankrupt and break these collective bargaining agreements, Congress passed the Coal Act in 1992 to ensure that the promises made to mine workers were honored.

Unity Real Estate is the sole surviving interest of several coal companies that employed hundreds of UMWA between 1922 and 1981.  When Unity was assigned 78 beneficiaries under the Coal Act, it sued, alleging that the Coal Act constituted a “taking” that required compensation.  After acknowledging that the Act had been universally upheld by other courts as not being an unconstitutional taking, Judge Smith granted a preliminary injunction against enforcement of the Act against Unity, holding that, were Unity to be held responsible for its Coal Act obligations, it would be forced out of business.  He depicted the government’s actions, in this case, as crossing the border into takings by “permanently appropriat[ing] any of the employer’s assets for its own use,” rather than simply adjusting the “’benefits and burdens of economic life’ in conjunction with a ‘public program’ that promotes the ‘common good.’”[16]

One year later, in an opinion written by a Reagan appointee, the 3^rd Circuit essentially overruled Judge Smith’s decision, stating that, “every court of appeals to consider a ‘takings’ challenge to the Coal Act has rejected it. We endorse the reasoning of those cases.”[17]  This ruling forced Judge Smith to “re-examin[e] Unity’s takings claim” and dismiss it, which he then agreed the law required.[18]  Had the 3^rd  Circuit not reversed Judge Smith’s ruling, coal companies and others would have license to claim a taking, and therefore compensation, in virtually any instance in which established law caused them financial hardship.  Erroneous interpretations of the Takings Clause threaten a wide range of health, safety and environmental protection.  The sweeping view of takings law expressed by Judge Smith in his initial opinion in Unity Real Estate would put all of these critical protections in serious jeopardy.  

In another case, trustees of a mine workers' benefit plan established pursuant to the Coal Act filed a claim against a coal company, seeking reimbursement for benefits that plan had provided to disabled mine workers formerly employed by the defendant.  Judge Smith recognized that the mining company was responsible, under Coal Act, for providing health benefits for certain former employees, including disabled coal miners.

However, he declined to issue an injunction ordering the plaintiff to provide coverage, because he believed the criteria necessary for the issuance of an injunction had not been satisfied.  The 3^rd Circuit, in a three judge panel consisting of two Reagan appointees and one Bush appointee, reversed Judge Smith’s decision to not order an injunction, which would have rendered the miners’ victory essentially meaningless. [19]  

A former employee brought an age discrimination action against his former employer, Fisher Scientific Company, claiming that his employment reviews became less favorable, and that he was eventually discharged, after he rejected an early retirement offer.[20]  Judge Smith granted Fisher Scientific summary judgment on the grounds that the employee, Jack Colgan, had not properly filed a prior claim with the Equal Opportunity Commission.  Colgan had filed with the EEOC within the requisite 300 days following his dismissal, but Judge Smith ruled that the clock should have started to run when Colgan got his unfavorable review and that, having failed to file within 300 days of that event, he had missed the deadline.   On appeal, the 3^rd Circuit, in an opinion written by a Reagan appointee, ruled that the proper time to begin counting days was termination, rather than the employer’s unfavorable review of plaintiff and noted that the plaintiff had had no reason to think he would be fired due to the single bad review.[21]  Given that decision, plaintiff’s charge was timely filed, and the summary judgment was reversed. 

Civil and Constitutional Rights of Those in Custody

Cases brought by those in custody and by criminal defendants are vital to the effective operation of the justice system, as critical violations by police officers and prison officials are brought to light only through the efforts of prisoners.  Broadly dismissing claims of violations on the grounds that some are frivolous ensures the continued and unpunished violation of civil and constitutional rights, and, for this reason, judges must carefully distinguish between the two types of cases.  In several cases, Judge Smith has demonstrated an unwillingness or inability to distinguish the frivolous from the serious.

In one such case, Urrutia v. Harrisburg County Police Dept.,[22] Judge Smith used a procedural ambiguity to dismiss the complaint of a prisoner who had been repeatedly stabbed while handcuffed and in the custody of police officers who looked on without defending him.  The 3^rd Circuit, in a three-judge panel consisting of three Republican appointees – two Reagan, one Nixon – vacated Judge Smith’s dismissal and remanded.

We have held that dismissal under §1915(d) is appropriate only when the complaint is truly frivolous and no amendment would cure the defect…. In view of the allegations discussed above… we are constrained to hold that the district court abused its discretion in denying Urrutia leave to amend his complaint to add or substitute the individual police officers as defendants and to supplement the factual basis of his claim.[23]

When a plaintiff files in forma pauperis, as Urrutia did in this case, the complaint is sent to a magistrate to determine the claim’s legitimacy before a summons is issued or a complaint served.[24]  Here, Judge Smith sanctioned delays by the magistrate that caused the statute of limitations period to expire and left Urrutia with no time to amend his complaint to comply with the requirements.  After the limitations period had lapsed, the magistrate found that the complaint was legally frivolous, since it named the Harrisburg Police Department (which had immunity), rather than the individual officers (who did not), as defendants.  Urrutia asked Judge Smith to grant him time to file an amended complaint naming the individual officers, but Judge Smith denied the motion to amend and dismissed the original complaint as frivolous. 

The 3^rd Circuit reversed unanimously, holding that Urrutia should have been given the opportunity to file an amended complaint relating back to the time of the first filing, noting that he had also filed a timely motion for extension of time to amend and that his problems were almost entirely the fault of the magistrate’s delay.[25]  

Two lawsuits, both brought by prisoner Henry Gibbs, were heard by Judge Smith and reversed by the 3^rd Circuit.  They highlight, in particular, his disdain for in forma pauperis complaints and his willingness to interpret the law so as to deny prisoners their right for redress of violations of constitutional rights.

In Gibbs v. Ryan,[26] the plaintiff claimed that his civil rights had been violated when he was denied medical treatment for injuries resulting from his ingestion of a piece of metal in prison food.  Judge Smith granted Gibbs only partial pauperis status, requiring him to pay all fees and expenses beyond the filing fees.  While the suit was pending, Congress passed the Prison Litigation Reform Act (“PLRA”), which denied pauperis status to a prisoner who has previously filed three suits determined to be frivolous.  Following the recommendation of the magistrate judge, Judge Smith used the Act to revoke Gibbs’ pauperis status and required him to submit the full fee.  On appeal, the 3^rd Circuit reversed and remanded on two grounds.  First, it noted that the law requires that, once pauperis status is granted and a case found not frivolous, as in this case, the court cannot require the plaintiff to pay partial fees.  More importantly, it also found that Judge Smith erred in retroactively applying the PLRA to Gibbs’ claim.

In the other case, Gibbs v. Cross,[27] Gibbs alleged serious physical injury from lint, dust, and odors emanating from an air vent in his cell.  Judge Smith strictly applied the Act’s three strikes rule against in forma pauperis claimants, ignoring relevant exceptions, to throw out his claim.  The rule denies pauperis status to prisoners who have filed three previous complaints found to be frivolous, “unless the prisoner is under imminent danger of serious physical injury.”[28]  However, Judge Smith not only denied in forma pauperis status despite the clear threat of physical injury, he dismissed the claim altogether.

The 3^rd Circuit found that Judge Smith had erred in denying in forma pauperis status and remanded the tort claims as well as the constitutional claims raised on appeal regarding access to the courts.  It held that “unidentified dust particles [that] were in his lungs and mucus, [causing] severe headaches, watery eyes, and a change in his voice” were sufficient to qualify as imminent danger, and that the statute did not require “allegations of an existing serious physical injury in order to bring a prisoner within the statutory exception.”[29]  

In a case involving a claim of ineffective assistance of counsel due to conflict of interest, Judge Smith was reversed because he failed even to address the complaint.[30]  Defendant Gary Hess, who had been convicted in state court of sexual misconduct with minors, claimed that his lawyer failed to fairly represent him due to a conflict of interest, which arose from the lawyers’ representation of the minors’ father in an unrelated case. 

Hess argued to Judge Smith that it was not he, but the children’s father, who had molested the children, and that his lawyer had not used the argument due to the conflict, but Judge Smith “considered only [the other ineffective assistance of counsel issue] and not whether an actual conflict of interest influenced Ling’s decision not to investigate [the father’s] possible guilt.”[31]  The 3^rd Circuit, in an opinion written by a Bush appointee, remanded, noting that actual conflict – i.e. representation of a potentially adverse party – is of the gravest sort and stating that, if “that claim has been preserved, Hess’s argument raises grave doubts about the reliability of the verdict.”[32]  

            In a case involving people not actually in custody, but rather, residents of a state- run home for mentally retarded adults, United States v. Pennsylvania,[33] Judge Smith held that egregious lapses in basic care of patients confined to an institution for the mentally disabled did not arise to the level of constitutional violations.  At trial, the Department of Justice introduced evidence of truly horrific care by a Pennsylvania facility, including instances of flies and ants on food, maggots and ants on residents, residents confined to their wheelchairs for hours without having their diapers changed, injuries sustained due to insufficient treatment of epilepsy, injuries sustained due to improper handling and transferring procedures, overmedicating, and on and on.  Judge Smith concluded that each of these facts amounted to an isolated incident and that the State had no constitutional obligation to enhance the residents’ level of functioning.

Failure to Comply with the Law  

There is also troubling evidence suggesting that Judge Smith sometimes resists compliance with a higher court’s interpretation of the law or with the stated language of the rule itself.

In a case reversed by a panel of two Reagan appointees and one Carter appointee, Judge Smith issued a one-paragraph order dismissing, out-of-hand, a First Amendment challenge by a high school teacher who was punished for and prevented from using her preferred style of teaching.  Judge Smith’s order contained no supporting conclusions of fact or law, leading the 3^rd Circuit to reverse and remand. In Bradley v. Pittsburgh Board of Education,[34] The first sentence of the 3^rd Circuit’s opinion, clearly demonstrates both its confusion and its disapproval of Judge Smith’s actions in the case:

This appeal concerns the propriety of the district court’s denial, without a hearing or findings of fact or conclusions of law, of plaintiff Diane Murray’s motion for a preliminary injunction preventing defendant school officials from banning Learnball, a teaching methodology she favored, and retaliating against her for using and advocating the system.[35]

The teacher alleged, among other things, an overly broad and vague ban on her classroom teaching methods, a pattern of retaliation and harassment in response to her use of the teaching method and her filing a suit against the school board, and an assault by a parent at a parent-teacher conference that was coordinated with the defendant Supervisory Program Specialist. 

Judge Smith refused to hold a hearing and dismissed all her claims, which, as the appellate court noted, constituted a major error:  “The difficulty we face is that the district court failed to comply with Rule 52(a) requiring findings of fact and conclusions of law upon the granting or refusing if a preliminary injunction…. The language of the Rule is mandatory.”[36]  The facts of the case suggest that Judge Smith was either unwilling or unable to comply with clear legal requirements, in this case federal rules.  

For an example of unwillingness or inability to comply with a higher court’s ruling, see Judge Smith’s decisions in the series of cases entitled In Re: Chambers Development Co., Inc.,[37] in which the 3^rd Circuit’s need to take the unusual and drastic step of issuing a writ of mandamus suggest either a careless disregard for his judicial responsibilities or an unwillingness to follow the law when doing so would not lead to his desired result.[38]

Conclusion

A review of the cases listed above strongly suggests a tendency by Judge Smith to disregard the needs of ordinary people or to ignore violations of their rights or the orders of higher courts.  In all of these cases, Judge Smith has interpreted laws or precedent in a way that leads to the result he wants, which appears to be (1) in favor of powerful interests over those of the individual, (2) against individual victims of discrimination or faulty products, and (3) against the claims of prisoners.  This tendency leads him to ignore important facts and legal principles and to deny ordinary individuals their right to access to courts to remedy violations of their rights.

At least as troubling as the number of reversals are the strong indications from a court heavily dominated, at the time of these decisions, by Republican appointees, that Judge Smith acts in defiance of settled law and higher court decisions, often to justify throwing out the claims of those least able to defend themselves.

For all of these reasons, Judge Smith’s nomination is troubling.  His confirmation to the 3^rd Circuit could result in a series of unfair decisions that are unsupported by existing law – and that might not be subject to correction by a higher court.

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