Attention Deficit Warning: you’re about to read a long boring text with no pictures.
In Neil Gorsuch nomination hearings, two of his opinions were seized on by his detractors. One is “TRANSAM TRUCKING, INC. v. ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR“, where it was alleged that Gorsuch, feeling an instinctive sympathy for large corporations and disdain for the common man, arrived at an absurd conclusion that a driver could be rightfully fired for trying to avoid freezing to death, and in doing so disobeying instructions.
The following is an attempt to ascertain if this criticism has merit.
Alphonse Maddin, an employee of TransAm, was stuck on I-88 in Illinois, with frozen breaks on his trailer, and a non-working auxiliary power unit, which was supposed to provide heating. He reported his situation to TransAm, which sent a repair-person to aid him. He eventually, feeling numbness in his extremities and difficulty breathing because of the cold, became concerned about continuing to sit in an unheated vehicle, and advised his supervisor that he was leaving to seek help. His supervisor told him not to leave the trailer and to either drag the trailer with the frozen breaks, or to continue waiting for the repair-person. Maddin disobeyed these instructions and instead, drove the truck without the trailer in an attempt to find help. He was fired for leaving the trailer.
Opinion and Dissent
At issue here was a decision made by an administrative law judge (ALJ) and Department of Labor Administrative Review Board (ARB), which found that the driver’s termination was wrongful, because it’s chief cause was a “protected action” (an action which could not result in termination) under the Surface Transportation Assistance Act (STAA). The statute which was deemed to have been violated 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.” “.
The majority opinion found that the termination did indeed violate this statute. To do so, it interpreted the wording “refusing to operate a vehicle” broadly, to include “refusing to operate in the prescribed manner, instead operating it in a manner that would alleviate the safety hazard”. To support this reading, the opinion cited the case “BEVERIDGE V. WASTE STREAM ENVIRONMENTAL INC.” as precedent. This case discusses a nearly identical situation, and indeed supports the broad (and in a way counter-intuitive) reading. From the cited opinion:
Under the ALJ’s reasoning, a refusal to drive an overweight vehicle would not be covered if the load was reduced by the employee to a legally acceptable level and then delivered. We do not agree. An employee who refuses to drive illegally does not lose his STAA protection by correcting the illegality and then proceeding to drive.
Gorsuch, in his dissent, disagrees with this broad reading. Instead, he reads the text narrowly, relying on the dictionary definition of the word “operate”. It’s hard to claim that this in itself is objectionable, given Gorsuch’s originalist/textualist philosophy, however several other aspects of his opinion seemed disconcerting.
First, the tone of his opinion is brash, condescending and irritated. It is full of insinuations to the effect that Maddin’s claims are frivolous, and that the fact that the case bubbled up all the way up to his court, without having been resolved in favor of TransAm, is in itself a malfeasance. From his dissent:
“…there’s simply no law … giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet.”
The word “adorn” is telling.
Second, there is no mention in his dissent of the precedent cited in the majority opinion. Nor is there an explanation of this omission. During his confirmation hearing, Gorsuch stated that if the wording of a statute is clear, the work of a judge stops there, and he needs to look no further. However, “clear” in this sense would suggest “clear to the judge hearing the case”, not “clear to any reasonable person”. The fact that there is an opinion which interprets the wording in a different fashion would suggest that it is not universally clear. This “clear to me” standard seems to allow for ignoring precedents in a whole variety of cases at the whim of the judge. For example “‘Freedom of speech’ is clear, thus there is no need to rely on precedents establishing exemptions for hate speech, libel, obscenity…”.
Third, the opinion goes out of it’s way to insinuate that the temperature experienced by Maddin, while being below comfort level, was not life threatening, without explicitly stating so, or providing justification for this. For instance, he describes Maddin’s option of staying in the truck as “unpleasant”. While the supposition that the temperature wasn’t life threatening isn’t strictly necessary to support his reasoning, the fact that Gorsuch chooses to insinuate this in several instances, suggests that he thought that his reasoning would not be sufficiently convincing without it. But in fact, Gorsuch contradicts himself. In the following passage, criticizing the majority opinion, he at the end, grants them that Maddin’s actions were indeed prompted by safety concerns, and it would stand to reason that if remaining in the vehicle was a safety hazard, it would be because the temperature was indeed so cold as to be life (or disfigurement) threatening.
To be sure, my colleagues invoke the statute’s purposes — employee “health” and “safety” — and suggest the result they reach is consistent with them. After all, they note, the employee here who chose to defy his employer’s instructions and drive his truck as he thought best didn’t do so to write a novel or with some other esoteric end in mind, but because he bore safety concerns. Just the sort of employee safety concerns, my colleagues indicate, Congress intended to protect.
Even supposing all this is true, though, when the statute is plain it simply isn’t our business to appeal to legislative intentions.
I assume that “Even supposing all this is true”, is shorthand for “All of this is true, as there is no evidence to the contrary”, because in the text of the case I did not see any such evidence.
In short, I found this opinion of Gorsuch really poor, and inconsistent with the majority of the praise he received at the nomination hearing. It’s possible that he wrote it on a bad day, but he stood behind it without any qualms at the nomination hearing.