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.

19 comments:

  1. Two comments:1)Judge Gorsach never met a corporation he didn't favor. 2)After 3 million miles, U.S. and Canada as an Owner Operator, I learned to be prepared to sleep on the ground, in the worst-case, wherever I was. Just Sayin'.

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    1. Agree 100% as an O/O myself never met a company I would drive for, also I even carry my own towels, so your comment about being prepared I totally get. Trucking isn't complicated I think the inexperience complicates an already over regulated industry................

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  2. If truck would run (driver left trailer). Did truck have heat? If so he could of stayed with trailer. Don't knock a judge or cop for following the law, get the law changed.

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    1. Truck did not have heat that is why he was freezing. He took tractor to get repaired and left trailer since it would not move.

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  3. Could it be possible that the judge knew enough about trucks to realize this dumbass created his own predicament by setting wet trailer brakes in freezing weather? If so Gorsuch has become my favorite member of the Supreme Court.

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    1. I agree the driver was probably fired for not being qualified to operate in cold weather/ should have sent him to Florida

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    2. This was caused by the ATA anti-trucking azzez. With the automatic trucks so anybody can get behind the wheel. Why didn't that driver have a propane torch with him would be my first question. When I pulled fleets trailers I made sure that was in my side box.

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  4. that's the kind of truck drivers that are coming out of the truck driving mills now days, one thing il. rest areas have restrooms which is heated and there are snack machines and soda machines in the lobby as well as benches to sit on and they are heated he could have waited inside there, also the brake shoes were frozen to the drum so a hammer could have been used to break them free, I have had that trouble in minus 40 degrees below zero and never even considered leaving the trailer, if that had been his truck and trailer he never would have left it, drivers these days have no common sense they are just a warm body and a steering wheel holder, the only use he had for his head was for a hat or cap rack

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    1. you know companies like Trans Am fire drivers for doing any kind of repairs on their own. but there are so many more questions on this case - why did the driver pull over? could he not have made it to a rest area or truck stop? why didn't he run the truck to get heat? why didn't he go after trans am for not providing a safe work place ?(Working APU) if APU wasn't working, what did he do the night before or the day after to keep from freezing?

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    2. According to the Factual Background in legal decision, the driver "pulled to the side of the highway because he was unable find the TransAm-mandated fuel station and his gas gauge was below empty." Also from the Factual Background: "While waiting for the repair truck, Maddin discovered that his auxiliary power unit (“APU” or “bunk heater”) was not working and there was no heat in the cab of the truck."

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  5. His opinion on this gives me hope. They were supposed to make a ruling based on the law, NOT on how the driver was affected. That would be an activist court/judges would it not?

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  6. Clearly trucking schools are not training drivers not to set their trailer brakes in cold weather or how to release frozen brakes if you do have a mental lapse and set them. I know, I know. Its too much to expect a wheel monkey to have a ball peen hammer and enough brains to use it to release a set of frozen brakes.

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  7. I am a driver, and this sounds like fake news. if the tractor is operating and he drove it why would you need a ApU to stay warm,BS Fake News!

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    1. Reading is fundamental. You are part of the problem, if you read the article in its entirety you would not ask that question.

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  8. If the truck ran he had heat.simple no excuse.sounds like driver not to freaking smart.but that's what we have out here today

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  9. "between the essential concept of the law and the equally compelling idea of justice". Exactly and to those who say just change the law. Yeah, right. In case you haven't noticed we have a god awful corrupt government that is for sale. It's more likely that the ATA goon squad will have that law repealed than it will be changed to include situations like this one. In a recent survey of the general public Cock Roaches were actually viewed more favorably than government. I'm not kidding.

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  10. This all sounds more like a dumb ass driver that just couldn't wait.
    Fuel issue:
    #1 In cold weather as a responsible driver you should always have at least 50 gallons of fuel.
    #2 A properly installed APU should never draw below 1/4 tank off fuel. About 50 gallons on dual tanks. At 1 gallon per hour an engine would be able to idle for almost 2 days keeping
    a tractor warm.
    #3 If no heater in the cab would be reason to not even drive the vehicle out of the yard because without a defroster the windshield would ice up.
    #4 If the vehicle was so low in fuel how did he manage to idle so long, leave, come back and continue after the repairs.

    GO FIGURE

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  11. I'm confused; was this case about the weather and the driver seeking help for his disabled trailer or about an overweight trailer. I'm seeing two different issues involving the same carrier.

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