Trucking Rotten Cargo Against Gorsuch

by Ed Whelan

From my Georgetown panel discussion (video here) yesterday on the Gorsuch nomination, I gather that the Left may try to flog Gorsuch for his dissent in TransAm Trucking v. Administrative Review Board. I briefly addressed one criticism of that dissent in this post, but will here offer a more extended account that I hope will help enable the reader to assess any other criticisms.

1. Let’s start with the facts and procedural background. (I’m borrowing heavily from the majority opinion, but am not bothering to include quotation marks.)

Alphonse Maddin was driving a tractor-trailer for his employer, TransAm Trucking, late one January night. After missing his fuel stop, he couldn’t find the next fuel station and his gas gauge was below empty. So he pulled to the side of the interstate highway to figure out what to do next. When he tried to get back on the highway ten minutes later, he was unable to do so because the brakes on the trailer had locked up in the subzero temperatures.

Maddin called the TransAm dispatcher to report the frozen brakes and was advised that a repair truck would be sent to him. But while waiting, he discovered that his heating unit wasn’t working. He eventually fell asleep, but when awakened by a phone call some two hours after he had pulled over, realized that his torso was numb and that he could not feel his feet. He called the dispatcher again and was told to “hang in there.”

Some thirty minutes later, concerned about continuing to wait in the freezing temperatures without heat, he unhitched the trailer from the truck and called his supervisor to tell him that he was leaving to seek help. The supervisor told him not to leave the trailer. But Maddin drove off. The repair truck finally arrived about fifteen minutes later, and Maddin drove the truck back to the trailer.

Some days later, TransAm fired Maddin for abandoning his trailer.

In a complaint with OSHA (the Labor Department’s Occupational Safety and Health Administration), Maddin claimed that TransAm, by its firing of him, violated the whistleblower protections of the Surface Transportation Assistance Act (STAA). OSHA dismissed the complaint, but an administrative law judge ruled in favor of Maddin, and the Department of Labor’s Administrative Review Board (ARB) affirmed the ALJ’s ruling.

2. Directly reviewing the ARB’s decision, a divided panel of the Tenth Circuit affirmed that decision. The majority opinion was written by Judge Michael Murphy (a Clinton appointee) and was joined by Judge Carolyn McHugh (an Obama appointee). (Mea culpa: At yesterday’s event, I had the alignment in the case wrong and mistakenly thought that Gorsuch won a majority for his position.)

Here’s my stab at a neutral and succinct summary of the majority’s position:

The STAA’s whistleblower provision makes it unlawful for an employer to discharge an employee who “refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.” TransAm argues that Maddin did not “refuse[] to operate” the truck but instead operated it in defiance of instructions to stay put. But the ARB is entitled to Chevron deference on its reading of the provision. Under its interpretation, an employee “refuses to operate” a vehicle when he “refuses to use his vehicle in the manner directed by his employer even if that refusal results in the employee driving the vehicle.” (Emphasis added.)

The ARB’s interpretation is compatible with one dictionary meaning of operate—“to control the functioning of”—and it furthers the purposes of the STAA. So we defer to it as a permissible interpretation under Chevron. Therefore, Maddin engaged in STAA-protected activity when he unhitched the trailer and drove off in the truck.

3. In his dissent, Gorsuch cogently disputes that the STAA’s whistleblower provision can reasonably bear the ARB’s reading of it:

[T]hat statute only forbids employers from firing employees who “refuse[] to operate a vehicle” out of safety concerns. And, of course, nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department [of Labor] would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write one in Congress’s place. [Italics in original; underlining added.]

4. By my lights, Gorsuch easily wins the battle over the statute’s text. But even anyone who disagrees with his textualist approach would have to strain hard to depict his dissent as evidence that Gorsuch is hostile to workers.

Gorsuch actually presents the facts, in the first paragraph of his opinion, in a manner as favorable as possible to Maddin. He, for example, doesn’t mention that Maddin had missed the earlier fuel stop, nor does he question the wisdom of Maddin’s decision to stop his truck on the side of the interstate highway in subzero temperatures. He ignores these unfavorable matters for the simple reason that they’re irrelevant to the legal question before the court. As he puts it:

It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.

That sound understanding of the judicial role is exactly what we should want in a Supreme Court justice.

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