Judge Gorsuch and the (Almost) Frozen Trucker

In his opening statement last Monday to the Senate Judiciary Committee, Judge Neil Gorsuch disavowed any intent to legislate from the bench.  Yet in one of his decisions, the focus of much attention, that is exactly what he did.

The case, TransAm Trucking, Inc. v. Admin. Review Bd., 2016 U.S. LEXIS 13071 (10th Cir. July 15, 2016), involved Alphonse Maddin, the driver of a tractor-trailer on I-88 in Illinois late at night in January.  This case arose under the Surface Transportation Assistance Act (“STAA”), a law passed by Congress in 1994.  The STAA is intended to protect commercial truck and bus drivers from retaliation because they have raised safety concerns or have refused to operate a vehicle in conditions they believe to be unsafe.

That statute prohibits any person from discharging an employee, among other reasons, because “the employee 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.”  49 U.S.C.§ 31105(a)(1)(B)(ii).  An employee who claims that an employer has violated the STAA can file an administrative complaint.  That case is heard by an administrative judge (“AJ”).  The losing party can appeal that decision to the Administrative Review Board (“ARB”) of the U.S. Department of Labor.  An appeal from that decision is heard by a court of appeals, in this case, the court on which Judge Gorsuch sits.

This should have been an easy case.  The AJ, the ARB and a majority of the Tenth Circuit concluded that the employer, TransAm, violated the STAA when it fired Mr. Maddin.  He had pulled off I-88 late that night because he was low on gas.  When he tried to start his tractor again, he discovered that the brakes on the trailer had frozen because of the extreme cold.  He called his dispatcher.  He was told to remain with the tractor-trailer until a repair vehicle arrived.  He was told that would take about one hour.

Three hours later, he awoke in the cab of the tractor.  No repair person had arrived.  The heater in the cab of the tractor was not working.  Mr. Maddin could not feel his feet.  His speech was slurred and he was having trouble breathing because of the extreme cold.

He called again to his dispatcher.  He was told to wait until help arrived.

Thirty minutes later, no one had arrived.  Mr. Maddin called his supervisor and described his symptoms.  His supervisor told him either to drag the trailer down the highway, despite its frozen brakes, or to wait with the trailer until a repairperson met him.

Mr. Maddin felt that both of those alternatives would have created an unsafe situation for himself and for others.  Instead, he locked the trailer, unhitched the tractor and drove it away.  When he returned, about 15 minutes later, a repairperson was there.  That person repaired the brakes on the trailer, and Mr. Maddin was able to drive away with it.

One week later, TransAm fired him for violating company policy by abandoning his load while under dispatch.  He filed a complaint, claiming a violation of the STAA.  That led to the Tenth Circuit’s decision, from which Judge Gorsuch dissented.

Judge Gorsuch stated that TransAm had not violated the STAA, because Mr. Maddin, in his view, had not refused to “operate” a “vehicle” because of his good-faith safety concerns about that “vehicle.”  The STAA does not define the term “operate.”  But it does define “commercial motor vehicle” to mean “a self-propelled or towed vehicle used on the highways in commerce principally to transport passengers or cargo” where the vehicle, among other things, weighs at least five tons.  The specific provision at issue in this statute uses the word “vehicle,” not “commercial motor vehicle” or “motor vehicle.”  It is reasonable to assume that Congress meant the word “vehicle” to include, but not to be limited to, a “motor vehicle.”

Judge Gorsuch claimed that TransAm fired Mr. Maddin not because he refused to operate a vehicle due to his safety concerns, but instead because he refused to exercise his statutory “right” to not operate the tractor-trailer until help arrived.  That claim ignores the fact that Mr. Maddin was worried that, if he were to stay with the tractor-trailer, he could freeze to death.  The real issue is whether he refused to operate not just the tractor, but also the trailer, because of those safety concerns; and whether that refusal was protected by the STAA.

In essence, Judge Gorsuch treated the tractor-trailer as if they were two separate vehicles.  Clearly, Mr. Maddin was able to operate the tractor safely.  However, the tractor could not pull the trailer safely.  Mr. Maddin unhitched the locked trailer and drove off in the tractor.  And TransAm fired him for doing that.

TransAm clearly felt that Mr. Maddin had violated its rules by not operating or remaining with the trailer.  It treated the tractor and trailer as being one vehicle, or the trailer as a vehicle that its driver had no right to leave by the side of the road.  In other words, it fired him for refusing to operate the trailer.  That refusal was protected by the STAA because the driver’s and the public’s safety were at risk.

This seems obvious to ordinary human beings.  The fact that it was not obvious to Judge Gorsuch is deeply troubling.  Among other things, it raises serious questions about his claimed refusal to legislate.

His dissent adopted a disdain about the safety of drivers and the public that the STAA was enacted to protect.  The statute was passed to protect drivers and the public from companies’ insistence that their drivers choose between their jobs and being able to operate their vehicles safely.  Although his dissent is couched in terms of legislative intent, Judge Gorsuch adopted an interpretation that would have gutted much of that statute.  His claim that he has not attempted to legislate from the bench betrays either his failure to recognize what he did in this case or an attempt at outright deception about his methods.

The Senate has a legitimate right to be concerned when a federal judge ignores the clear intent of a federal statute.  The senators who are complaining about this dissent are Democrats.  In another situation, it could be Republicans who would complain.  Both would be right.  Federal judges must not legislate, and they must be honest about their methods.  This dissent, together with Judge Gorsuch’s other actions and decisions, demonstrates why the Senate should not confirm him to a lifetime seat on the Supreme Court.