Labor-side attorneys aren’t commonly selected for the federal bench, even by past Democratic Administrations. As such, the nomination of Jennifer Sung, who has spent her entire career representing unions and workers’ rights organizations, to the Ninth Circuit is particularly notable.
Jennifer Sung received her B.A. from Oberlin College in 1994 and then spent three years working as a labor organizer for the Service Employees International Union Local 74. She then spent three years as an organizer with the Service Employees International Union Local 1199 before joining Yale Law School. After graduating, Sung clerked for Judge Betty Binns Fletcher on the U.S. Court of Appeals for the Ninth Circuit and then served as a Skadden Fellow at the Brennan Center for Justice at New York University Law School.
In 2007, Sung joined the San Francisco office of Altshuler Berzon LLP, a union-side labor law firm established by now-Ninth Circuit Judge Marsha Berzon. In 2013, Sung became a Partner with McKanna Bishop Joffe LLP in Portland. Since 2017, Sung has been a member of the Oregon Employment Relations Board, where she helps to resolve labor disputes and conflicts.
History of the Seat
Sung has been nominated to an Oregon seat on the U.S. Court of Appeals for the Ninth Circuit. This seat is currently held by Judge Susan Graber, who has announced her intention to move to senior status upon confirmation of her successor.
Consistent with her work as a labor organizer prior to law school, Sung has spent her career as a labor lawyer, frequently representing unions and worker’s groups. Some of her prominent cases are summarized below.
Challenge to Arizona SB 1365
In 2011, Sung represented the Local 5 Service Employees International Union in challenging Arizona SB 1365, which limited public employees’ ability to send payroll deductions to certain unions that engaged in political activity. See United Food & Commer. Workers Local 99 v. Brewer, 817 F. Supp. 2d 1118 (D. Ariz. 2011). The law was enjoined by U.S. District Judge Murray Snow, who found that it violated the First Amendment. See id.
Challenge to ACA Individual Mandate
In 2011, Virginia challenged the individual mandate of the Affordable Care Act as unconstitutional and won before the U.S. District Court. Sung represented the Service Employees International Union as amicus before the Fourth Circuit urging the court to uphold the mandate. See Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011). The Court upheld the constitutionality of the individual mandate (and the U.S. Supreme Court eventually agreed). See id.
New York Transit Strike of 2005
In 2005, during negotiations over a new collective bargaining agreement between transportation unions and the the New York City Transit Authority, the Authority obtained an injunction pursuant to New York’s Taylor Law to prevent the unions from striking. See New York City Tr. Auth. v. Transport Workers Union of A., 35 A.3d 73, 75 (N.Y. App. Div. 2006). When the Local 100 of Transport Workers Union of America initiated a strike anyway, it was found in contempt and fined $1 million per day. See id. Sung represented amicus in supporting the Union’s challenge to the contempt citation on appeal. See id. However, the Appellate Division of the New York Supreme Court upheld the citation against the Union’s Sixth and Fourteenth Amendment challenges. See id.
Los Angeles Worker Retention Ordinance
In 2011, Sung represented amicus in defending the City of Los Angeles worker retention ordinance, which limited employers’ ability to replace their workforces. See California Grocers Ass’n v. City of Los Angeles, 52 Cal. 4th 177 (2011). While the California Court of Appeals struck down the ordinance as being pre-empted by state law, the California Supreme Court upheld the ordinance. See id. at 210.
Legislative and Policy Work
While at the Brennan Center, Sung also worked on labor policy outside of the litigation context. For example, Sung advised the New York Working Families Policy in developing a proposal to tax companies, such as Wal Mart, who failed to provide health benefits for their workers. See Danny Hakim, Wal-Mart Looms Over 2 Bills to Improve Worker Health Care, N.Y. Times, Mar. 8, 2006. Sung also helped draft a Chicago ordinance requiring big box retailers, such as Wal-Mart, to provide a living wage to employees. See Gretchen Ruethling, In Chicago, New Pay Law Is Considered for Big Stores, N.Y. Times, May 28, 2006.
With extensive experience in labor law, Jennifer Sung has an unusual background for an appellate nominee. Not since Marsha Berzon was appointed to the Ninth Circuit in 2000 has such a nominee been picked for the Ninth Circuit. Based on her representations and her work in drafting ordinances and legislation, Sung is likely to attract opposition from most Senate Republicans. However, assuming that Democrats stick together, they should be able to confirm Sung by the Fall. Once confirmed, it is likely that Sung would establish a jurisprudential profile similar to that of Berzon’s.