Thursday, February 2, 2017

What Supreme Court nominee Gorsuch wrote about a freezing trucker

Seems Judge Neil Gorsuch, nominee for the Supreme Court, was on a panel of judges who heard a trucking case while he served on the federal appeals court in Denver. The carrier, TransAm, appealed a ruling by the Labor Department that was favorable to a driver who said he was unjustly fired.

Last August, the court found in favor of the Labor Department and thus the driver. Judge Gorsuch did not like the decision and wrote a dissent.

The case goes back to 2009 when a TransAm driver was fired for dropping a trailer on I-88 in Illinois and driving away. Those are the bare facts; there’s more to it.

About 11 p.m. on an extremely cold January night, the driver pulled over for 10 minutes or so, enough time for his trailer brakes to freeze. He called in and was told to wait for assistance. Then he discovered his APU wasn’t working; there was no heat in the cab. The driver fell asleep only to wake up two hours later unable to feel his feet. So he called in again and was told to “hang in there.” Half an hour after that, the driver called again to say he was taking the tractor and going for help. He was told not to leave the load, but left anyway. He came back, presumably with his feet unfrozen, to find the trailer repaired. A week later, TransAm fired him for abandoning the load.

The case has caught some attention in the trucking media again after Gorsuch was nominated to the Supreme Court.

In the court’s ruling in favor of the driver, the court cited federal code protecting drivers who refuse to operate unsafe equipment – in this case the trailer with frozen brakes. TransAm claimed the statute did not apply because by driving away, the driver did in fact “operate” the vehicle. So TransAm claimed they were on solid legal grounds when they fired him for leaving the load.

The judges didn’t buy that, writing, “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.”

Yes, the statement seems kind of goofy. But the example cited by the judges is not. That case involved a driver who was ordered to pull an overweight trailer. Without authorization, the driver took off enough freight to make the load legal and then completed the trip. That driver also refused to operate a vehicle even though he drove it, the court decided.

In his very clear dissent, Judge Gorsuch did not address that case law, but referred to the dictionary. The term “operate,” he noted, means to cause or actuate the working of; to work a machine, etc.” That’s not ambiguous in Judge Gorsuch’s view. The driver clearly did “operate” the vehicle when he took off in the tractor.

“The law before us protects only employees who refuse to operate vehicles, period,” he wrote.

“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,” Judge Gorsuch wrote. “It is our obligation to enforce ... the law itself, not to use the law as a sort of springboard to combat all perceived evils lurking in the neighborhood.”

Judge Gorsuch’s opinion is clear and direct. He was able to simplify issues and express them in the most literal terms. We may applaud him for that, I suppose, but maybe the issues here are even simpler. Maybe there’s only one issue: a case in which the court had to choose between the interests of a 1,000-truck fleet or a driver who had a choice of his own – lose his job or lose his feet. Is that a little too simple?

Probably. But I’m trying to make a point, just as Judge Gorsuch was when he wrote this: “Imagine a boss telling an employee he may either ‘operate’ an office computer as directed or ‘refuse to operate’ that computer. What serious employee would take that as license to use an office computer not for work but to compose the great American novel? Good luck.”

That’s a bad analogy that would be relevant only if the unauthorized computer user instead of composing the Great American Novel was texting to report a holdup, a fire, or – most aptly – a life-threatening lack of heat.

What we have here, it seems to me, is a classic struggle in the swamp of human affairs between the essential concept of the law and the equally compelling idea of justice. Forgive me if in this case I tip toward justice.

I’m not an attorney, never mind a judge, but I am a writer. I have to guess it’s not incredibly difficult to clearly and concisely write a narrow, literal interpretation of the law. It must be more challenging to express and defend a nuanced, multi-step opinion – which I believe the other judges did.

Along with most Americans, I wish Judge Gorsach well should he become a justice on the Supreme Court. I hope he is fair and as eloquent as that fairness allows.


But in this case, I’m glad his opinion was a dissent and not the court’s ruling.