President Biden nominated Jennifer Sung to the United States Court of Appeals for the Ninth Circuit on June 30, 2021, for the seat being vacated by Judge Susan Graber, who will take senior status upon confirmation of her successor. Ms. Sung is the first lawyer from the Asian American Pacific Islander community to be nominated to a federal judgeship in Oregon. Ms. Sung has spent her career tirelessly advocating for the rights of workers as a union organizer and attorney. Most recently, she has served as a member of the Oregon Employment Relations Board.
Ms. Sung was born in 1972 in Edison, New Jersey. She attended Oberlin College and Yale Law School. While at Yale, Ms. Sung worked as a student attorney in the law school’s civil rights clinic where she represented uninsured and underinsured patients at a Yale affiliated hospital. The patients were in debt because of crushing hospital bills despite the hospital’s “free bed fund,” which was intended to alleviate the financial burdens of poor patients.
In between undergraduate and law school, Ms. Sung worked as an SEIU organizer in New York for Local 1199 and Local 74, helping workers win union representation/recognition. After law school, Ms. Sung served as a law clerk for Judge Betty Binns Fletcher on the U.S. Court of Appeals for the Ninth Circuit.
Throughout her career as a lawyer, Ms. Sung has represented low-wage factory and grocery store workers, taxi drivers, restaurant servers, nursing home and home health workers, hospital nurses, teachers, and labor unions. As an organizer in New York City, Ms. Sung helped start a Chinese-language member outreach program after learning that many Chinese women immigrants were home care workers. She also helped to found the union’s Asian Pacific Islander caucus to engage all Asian members.
Ms. Sung began her legal career as a Skadden Fellow in the Economic Justice Project of the Brennan Center for Justice at New York University School of Law. At the Center, Ms. Sung’s work focused on improving wages and working conditions for low-wage workers. She represented workers fighting for a living wage, drafted model legislation, and testified before state legislatures in efforts to improve access to healthcare and raise wages across the country.
In 2007, she joined Altshuler Berzon LLP as an associate in San Francisco. In one illustrative case, she represented warehouse workers who were victims of wage theft. Their employer falsified records of hours worked and wages owed to deny them the pay they had worked for and fired workers en masse in retaliation for their challenge of the illegal conduct. Additionally, Ms. Sung brought a class action lawsuit on behalf of 18,000 Pizza Hut servers, cooks, and delivery drivers for the company’s failure to provide legally required meal and rest breaks, as well as failure to reimburse work-related expenses. She was also part of the litigation team that successfully enjoined a California county from cutting in-home services to low-income individuals with disabilities. Ms. Sung also represented a union challenging two Arizona laws that prohibited constitutionally protected speech by unions and their members, such as boycotting and picketing, but did not apply similar restrictions to any other organizations. A court permanently enjoined the laws for violating the First Amendment rights of union members. Sung also co-authored an amicus brief in the U.S. Supreme Court defending the constitutionality of the Affordable Care Act, a law which provided access to quality health care for millions.
Ms. Sung was a partner at McKanna Bishop Joffe LLP in Oregon from 2013 to 2017 where she represented labor organizations and employees, specializing in the representation of teachers and educators. While with McKanna, she successfully brought a suit on behalf of nurses against the Kaiser Foundation Health Plan of the Northwest for intentionally scheduling nurses to work on their off days without any attempt to accommodate the nurses’ schedules. She also represented striking faculty members of Portland State University in an unlawful interference suit where the university threatened to disable the striking employees’ email access days prior to the announced strike.
In 2017, Governor Kate Brown nominated Ms. Sung to serve as a member of the Oregon Employment Relations Board, which has exclusive jurisdiction in the state to adjudicate disputes over unfair labor practices and employment litigation for approximately 3,000 Oregon employers and 250,000 workers in the public and private sector covered by collective bargaining laws. The Oregon Senate confirmed her unanimously. She completed an unexpired four-year term and was reappointed to the Board for another four-year term in 2020.
As an impartial adjudicator on the Board, Ms. Sung has decided over 200 cases during her tenure. The Oregon Court of Appeals has reversed only three. Demonstrating the fair and unbiased manner in which she has approached her position, she has ruled both for and against unions and employees. For example, in Oregon AFSCME Council 75, Local 3997 v. Deschutes County Library District, the Board concluded that an employer who terminated an employee who attempted to return to work from disability leave did not violate the collective bargaining agreement. Ms. Sung dissented and argued that the employer failed to comply with the Americans with Disabilities Act (ADA) and Equal Employment Opportunity Commission (EEOC) Guidelines. In SEIU Local 503 v. University of Oregon, Sung and the Board held for the University in a suit brought by the University employee union. The union contended that the university-employer violated its duty to bargain when it failed to identify a student who witnessed an employee’s misconduct. The Board found that the University had acted reasonably in the face of competing demands, the duty to bargain in good faith and duty to protect the confidentiality of its students. In V. v. State of Oregon, the Board unanimously held that the Oregon Health Authority properly fired a genetic scientist for improperly using state resources for unauthorized research, even though the employer did not first seek any lesser form of discipline prior to dismissal.
Professional Activities and Accolades
At Yale Law School Ms. Sung was a member of the Asian Pacific and Native American Law Student Association and served as its community service chair. She currently is a member of the Oregon Asian Pacific American Bar Association, the Oregon Minority Lawyers Association, and Oregon Women Lawyers. As a member of the Oregon State Bar’s Labor and Employment Law Section, Ms. Sung has helped to expand efforts to further equity and diversity in the profession, including providing grants to law students in unpaid or low-paid summer internships.