The so-called “frozen trucker” case, Transam Trucking, Inc. v. Administrative Review Board, featured prominently in last week’s confirmation hearing on Neil Gorsuch’s nomination to the Supreme Court. Democrats cited it repeatedly as evidence that Judge Gorsuch is inhumane and his rulings reflexively favor corporations over “the little guy.” One liberal pundit (evidently off his meds) described Gorsuch’s opinion in the case as an exercise in “almost Gothic cruelty.” However, I’d submit that the case actually illustrates three quite different points:
(1) as the old adage goes, “hard cases make bad law”;
(2) Gorsuch is, as advertised, a “textualist” who applies statutes based on what they say rather than what one might wish them to say; and
(3) Gorsuch has good reason to be skeptical of excessive judicial deference to executive agency legal interpretations.
The case concerned the driver (Alphonso Maddin) of a tractor-trailer rig who discovered after parking his rig on the side of a highway that the brakes on the trailer had become frozen due to subzero temperatures. Maddin notified the company of this problem and was told that a mechanic would be dispatched to fix the brakes. Maddin waited with the rig and eventually fell asleep. He awoke several hours later to discover that the heater in his truck cab was not working and he was becoming numb. When he called in for further instructions, a company supervisor ordered him not to abandon the trailer. He was told either to drag the trailer with its frozen brakes or to continue to stay put until help arrived. Notwithstanding this order and fearing for his safety, Maddin disconnected the truck from the trailer and drove off, leaving the trailer behind. When the mechanic finally arrived shortly thereafter, Maddin returned to the trailer and the brakes were repaired. However, the company later fired him for abandoning the trailer.
Maddin filed a complaint over his firing with the Labor Department’s Occupational Safety and Health Administration (OSHA). OSHA initially investigated and dismissed his complaint (a fact Gorsuch’s critics tend to ignore) but appellate levels within Labor eventually sided with Maddin. In a 2-1 ruling with Gorsuch dissenting, a Tenth Circuit panel upheld Labor’s decision in favor of Maddin.
The legal issue came down to whether Maddin’s firing violated a federal statute (49 U.S.C. 31105) making 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.”
While both the Labor Department and court majority rationales are somewhat muddled,[1] their bottom line conclusion seems to be that the company ordered Maddin to “operate” a vehicle by telling him to remain with the trailer and that Maddin refused to “operate” a vehicle by unhitching the trailer and driving off.
Based on the facts presented, the company’s firing of Maddin certainly seems extreme and unreasonable.[2] However, the relevant question is not whether the company was wrong but whether its actions violated the statute. On this point, Gorsuch’s dissenting opinion is much more persuasive. Maddin was fired for abandoning the trailer instead of waiting with it by the road side. While his actions were prompted by genuine concern for his safety due to the malfunctioning heater, he did not “refuse to operate” a vehicle based on safety concerns. Just the opposite, he operated a vehicle based on safety concerns.
The only aspect of the case that could have involved the refusal to operate a vehicle was his failure to act on the supervisor’s suggestion that he “drag” the trailer with its frozen brakes. Clearly, however, he was not fired for this. Indeed, the company maintained in the litigation that this suggested option was “ridiculous” and even physically impossible to carry out. In any event, the supervisor also gave Maddin the option of staying put. The only order was not to abandon the trailer. Likewise, Maddin’s act of detaching the trailer obviously had no bearing on his firing. The company would have had the same (perhaps more) reason to fire him if he had left the entire rig, truck and all, and simply walked away or hitched a ride with a passing motorist.
In short, the company’s decision to fire Maddin may have been wrong-headed and unjust but it did not violate the statute by any reasonable construction of its terms. Maybe Congress could enact a blanket prohibition against firing employees who refuse any order that could jeopardize their safety, but that’s certainly not the law involved here.
As noted at the outset, this case demonstrates the contrast between a judge like Gorsuch who applies statutes based on their actual language and judges like the majority here who are willing to distort statutory language (or to condone statute-distorting by bureaucrats) in order to support what they regard as a more “just” outcome. Most adherents to our democratic principles would prefer to leave the lawmaking to legislators rather than judges and bureaucrats.
Unsurprisingly, the questioning of Gorsuch on this case at his confirmation hearing (to the extent actual questions were embedded in the senatorial grandstanding) focused heavily on the truck driver’s plight: How would Gorsuch feel had he been in Maddin’s shoes? What would he have done? Isn’t it “absurd” not to find a way for the law to favor him? There was hardly any discussion of the substantive legal merits. Senators can afford to engage in such demagoguery and ignore the legal niceties. Fortunately for us all, judges cannot.
[1] Labor’s decision apparently was based primarily on the theory that Maddin’s call to the company about the frozen trailer brakes constituted “protected activity” under a whistle-blower provision of the same statute, which prohibits firing an employee for filing a “complaint” or initiating a “proceeding” over a safety “violation.” Even the court majority did not buy this theory. The whistle-blower provision clearly applies to complaints directed to regulatory authorities not calls to employers and, in any event, the mere fact that the brakes were frozen was not a “violation” of anything. For its part, the court majority opinion explores several different and less than coherent theories about how Maddin’s actions might constitute the refusal to “operate” a vehicle.
[2] It may be that other factors, such as Maddin’s possible negligence, influenced the company’s decision to fire him. According to the court’s opinion, the truck was virtually out of fuel at the time he pulled off the road because he had missed his designated refueling station.