Judge Gorsuch’s Back-Seat Drivers

“Hard cases,” it’s often said, “make bad law.” They also make for bad legal commentary, especially in the week of a Supreme Court confirmation hearing, where a nominee’s critics try to fault him for failing to side with sympathetic litigants—even when the judge was just following the laws that Congress wrote. We’ve seen some of that this week during the Gorsuch hearings. The judge’s critics have seized upon his position in TransAm Trucking v. Department of Labor, a 2016 decision involving a very unfortunate incident.

Alphonse Maddin, a truck driver, was hauling a trailer down I-88 in Illinois in the middle of the night, in January 2009, when (in the court’s majority opinion’s words) “the brakes on his trailer froze because of subzero temperatures.” Maddin pulled off the road when he ran low on gas and couldn’t find a gas station, and when he tried to get back on the road he found that his trailer’s brakes had frozen.

Maddin reported the frozen brakes to his bosses at the TransAm Trucking company, who told him that help was on the way. He dozed in the cab of his truck, but its bunk heater wasn’t working; when he awoke a couple of hours later, “he realized his torso was numb and he could not feel his feet.” He continued to plead his case to the company, which told him either to drag the trailer with frozen brakes or stay on-site with the trailer until the repairman arrived. Maddin did what anyone in his condition would probably do: he abandoned the trailer on the roadside and drove away. Days later, TransAm fired Maddin “for violating company policy by abandoning his load while under dispatch.”

Maddin complained to the federal Occupational Safety and Health Administration, an agency within the Labor Department, arguing that TransAm violated the “whistleblower” provision of the federal Surface Transportation Assistance Act, which provides that a trucking company “may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, 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[.]”

The trucking company didn’t dispute that Maddin had reasonable apprehension of serious injury; rather, it contended that he wasn’t fired for “refus[ing] to operate a vehicle.” After all, the company argued, he did operate the vehicle: He drove the truck away.

OSHA rejected Maddin’s claim, but the Labor Department ultimately overruled OSHA and sided with Maddin, concluding that the statute’s reference to “refus[ing] to operate a vehicle” includes an employee’s decision to operate the vehicle in a way that contradicts the company’s instructions. As Judge Gorsuch’s colleagues explained in their majority opinion in favor of Maddin, the department concluded that “the refusal-to-operate provision could cover a situation in which an employee refuses to use his vehicle in the manner directed by his employer even if that refusal results in the employee driving the vehicle.” Observing that the statute’s stated purpose is to “promote the safe operation of commercial motor vehicles,” “to minimize dangers to the health of operators of commercial motor vehicles,” and “to ensure increased compliance with traffic laws and with . . . commercial motor vehicle safety and health regulations and standards,” Gorsuch’s colleagues concluded that the department’s interpretation wasn’t unreasonable: “we defer to the DOL’s interpretation that the term ‘operate’ as used in § 31105(a)(1)(B) is not coextensive with the term ‘drive.’ . . . Thus, as the [department] concluded, although Maddin actually drove the truck after unhitching it, he refused to operate his tractor-trailer in the manner instructed by his employer.”

Judge Gorsuch dissented, concluding that the Labor Department’s interpretation of “operate” went well beyond the statute’s reasonable limits:

My colleagues suggest that the Department should be permitted to read the statutory phrase “refuse[] to operate” to encompass its exact opposite and protect employees who operate their vehicles in defiance of their employers’ orders. . . . [I]t seems to me that the statute is perfectly plain—and plainly doesn’t capture the conduct here—just as TransAm suggests. The term “refuse” means “[t]o decline positively, to express or show a determination not to do something.” 8 The Oxford English Dictionary 495 (2d ed. 1989). Meanwhile, “operate” means “[t]o cause or actuate the working of; to work (a machine, etc.).” …

Putting this together, employees who voice safety concerns about their vehicles may decline to cause those vehicles to work without fear of reprisal. And that protection, while significant, just does not give employees license to cause those vehicles to work in ways they happen to wish but an employer forbids. Indeed, my colleagues’ position would seem to require the addition of more than a few new words to the statute. In their view, an employee should be protected not just when he “refuses to operate a vehicle” but also when he “refuses to operate a vehicle in the particular manner the employer directs and instead operates it in a manner he thinks safe.” Yet those words just aren’t there; the law before us protects only employees who refuse to operate vehicles, period.”

In short, Gorsuch didn’t disregard the difficult choice that Maddin faced: “It might be fair to ask whether TransAm’s decision was a wise or kind one,” he observed in his dissenting opinion. “But it’s not our job to answer questions like that.” Rather, Gorsuch’s job was the apply the law that Congress wrote, as he best understood it: “Whatever the case, it is our job and work enough for the day to apply the law Congress did pass,” he said in closing, “not to imagine and enforce one it might have but didn’t.” In this case, Gorsuch concluded, Congress wrote a particular statute that protected drivers who would get fired for refusing to operate their vehicles in certain conditions—not those who would get fired for operating their vehicles contrary to the employers’ directions.

Gorsuch’s dissent in the TransAm case attracted plenty of political criticism from Democratic Senators. But it also attracted criticism from law professor Jed Shugerman, who blasts Gorsuch in Slate for “arrogant[ly]” failing to come up with better arguments in favor of the Labor Department and Mr. Maddin:

[H]e was welcome to entertain a better interpretation than the agency’s. For example, instead of focusing on the word operate, one could conclude that the word vehicle is open to interpretation—that the vehicle here was the truck and trailer together. … Thus, Maddin refused to operate his vehicle—the truck and trailer—and only operated the truck. The majority probably did not discuss this alternative interpretation because they were engaged in Chevron deference, and deferring to the agency means focusing on its stated interpretation.

Instead of considering such possibilities, Gorsuch concluded that the statute did not protect Maddin from his firing and that he did not find the word operate ambiguous at all, declaring that no possible meaning beyond drive is reasonable.

But Shugerman’s back-seat judicial driving suffers from a major blind spot: namely, the arguments he blames Gorsuch for not accepting are arguments that the Labor Department didn’t endorse either.

Here is the Labor Department brief’s entire argument (minus citations) on what it means to “operate” a “vehicle”:

TransAm’s second objection, that Mr. Maddin’s refusal to remain with the trailer did not constitute a refusal to drive . . . is also incorrect. As shown above, Mr. Maddin’s disconnection of the trailer constituted a refusal to drive in the way that Mr. Kluck ordered: by dragging the trailer with frozen brakes. . . . By driving his truck off without the trailer, Mr. Maddin refused to drive the whole rig as instructed. Therefore, his refusal to remain with the trailer constituted a refusal to drive as ordered, and, as demonstrated above … was protected activity under the “reasonable apprehension” prong.

That summarizes the same argument that the Labor Department made in its own administrative decision:

The [statute’s] “refusal to operate” clause should not be read so narrowly. Under the facts of this case, driving or operating the truck in violation of Mr. Kluck’s [i.e., the TransAm’s official’s] order to remain with the trailer falls within the ambit of the “refusal to operate” clause of STAA and presented precisely the risk of serious injury that STAA is designed to avoid. Our precedent supports this interpretation. For example, [the Department has] held that an employee who refuses to drive an overweight truck does not lose protection under the STAA “refusal to drive” provision by correcting the perceived illegality (by off-loading) and proceeding to drive. Similarly, an employee’s refusal to operate a truck over a certain speed under conditions rendering it unsafe or illegal might be protected under the “refusal to operate” clause. Certain refusals or insubordinate acts arising out of the complainant’s employment as a truck driver may be covered under the “refusal to operate” clause even where the activity does not strictly constitute a refusal to operate the vehicle.

The [Department’s Administrative Law Judge’s] finding—that by unhooking the trailer “Maddin refused to operate the truck under the conditions set by Mr. Kluck“—is consistent with this reasoning. . . . As explained above, a “refusal to operate” may encompass actually operating a vehicle in a manner intended to minimize danger of harm or violation of law.

In other words, here we find the Labor Department’s order emphasizing the Department’s actual argument: that when Congress said that employees can’t be fired for “refus[ing] to operate” a truck in certain conditions, Congress also protected employees from getting fired for operating the truck in a way contrary to the company’s instructions. That is the argument that Judge Gorsuch reviewed on appeal.

Note what the Labor Department didn’t argue: It didn’t argue that the “vehicle,” for purposes of the statute, is “the truck and trailer together.” The Department made clear that the “vehicle” that Maddin “operates” was the truck. It didn’t argue that Maddin actually refused to operate his vehicle. In fact, the Labor Department went out of its way to emphasize that Maddin “actually operate[d] a vehicle”—namely, the truck. The Department admitted that Maddin’s action “does not strictly constitute a refusal to operate the vehicle.”

Shugerman’s preferred judicial approach—making up creative arguments that the agency itself did not offer in the first place—violates a basic rule of administrative law: Courts can only affirm agency actions based on the reasons spelled out in the agency’s own decision. As the Supreme Court has stressed since the dawn of modern administrative law, “[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Or, as the Court put it more recently, “[i]t is well-established that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.”

I don’t blame Shugerman for trying to come up with better arguments than the Labor Department itself did. As it happens, my grandfather was a Teamster; he drove his truck more than two million miles without a preventable accident, on Iowa and Wisconsin highways not far from Illinois’s I-88. Truck driving is a very difficult job, even in the best of weather—let alone in brutal winter conditions. I would never blame Maddin for doing what he did.

But nor would I blame Gorsuch for doing what he did—namely, applying the statute that Congress actually wrote to the arguments that the Labor Department actually made.

Professor Shugerman makes a good case for Congress revising the statute. But that’s Congress’s job, not Judge Gorsuch’s. Judges should stay in their own lane, and keep their britches between the ditches.

Adam J. White is a research fellow at the Hoover Institution.

This post originally appeared on Weekly Standard

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