A look at the ‘frozen trucker’ case

A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck. He called his company for help and someone there gave him two options. He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a legal if unpleasant option). The trucker chose None of the Above, deciding instead to unhook the trailer and drive his truck to a gas station. In response, his employer, TransAm, fired him for disobeying orders and abandoning its trailer and goods.

That’s the fascinating scenario and story that could make for a great TV show. It’s also the first paragraph of Judge Neil Gorsuch’s dissent in the case, which law professor Jed Handelsman Shugerman wrote on Slate today constitutes one of the most callously written opinions he’s ever read.

The trucker was fired but was ordered reinstated by an administrative review board, a judgement upheld by Gorsuch’s colleagues on the Court of Appeals over his objection.

Here’s the full opinion.

“It might be fair to ask whether TransAm’s decision was a wise or kind one,” Gorsuch wrote. “But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”

The Department of Labor says that TransAm violated federal law, in particular 49 U.S.C. § 31105(a)(1)(B). But that statute only forbids employers from firing employees who “refuse[] to operate a vehicle” out of safety concerns. And, of course, nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write one in Congress’s place.

Given that the trucker was freezing, does that view of the law lack a certain humanity in deference to the literal nature of law? That was at the heart of Sen. Al Franken’s questioning of Gorsuch today.

“Gorsuch was demonstrating his firm belief in the principle that the actual words of a law should be strictly applied by the court,” CNN legal analyst Paul Callan writes. “This doctrine, often referred to as textualism, stands for the proposition that it is up to the legislature to make the law and is up to judges to strictly apply the actual words of the law.”

Gorsuch maintained that the actual words of the statute in question would only back the driver when he was “operating” both the cab and the trailer as a single unit. Obviously, he couldn’t “operate” the truck and trailer together and drive away for help and warmth because the brakes on the trailer were frozen. The other judges on the 10th Circuit were willing to apply a dollop of common sense and give the driver the benefit of the doubt.

In his dissent, Gorsuch dismissed his judicial colleagues’ concerns about health and safety.

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. 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.

“Which judges write like this?” Professor Shugarman asked in his essay today. “Those who aspire to be the next Scalia.”

“His lack of self-awareness of his theory’s flaw plus his acerbic dismissiveness of real-world conflicts are not a good sign that he has the appropriate judicial temperament for the Supreme Court,” he concluded.

  • BReynolds33

    I’ll bite. Why couldn’t the trucker stay warm in the truck? If was drivable, it ran, and would produce heat. No?

  • KTN

    I like Dick Durbin’s quote about Judge Gorsuch opinion. “the temperatures were freezing that day, but not as cold as your dissent”

  • rosswilliams

    What we REALLY, REALLY need is another judge who attended Harvard or Yale Law Schools where they are taught to carry on highly abstract debates over the meaning of words. They can seriously argue whether when constitution says person it actually means human being.

    I suspect if someone who hadn’t participated in those sorts of discussions at Harvard and Yale been on the court that particular abstract discussion would have taken a slightly different term – someone might have even laughed at the suggestion. Like the suggestion workers are not protected from being fired for refusing to freeze to death.

    • MikeB

      I see your point about too many Ivy League backgrounds creating a silo. But I think it is more to do with conservative judges who assume the employer is right all the time, in every circumstance, forever. This is what leads to the lack of common sense in Gorsuch’s opinion above.

      John Roberts famously said the judges are like umpires, calling balls and strikes. But he only sees employers throwing strikes.

      • rosswilliams

        I think that is true to some extent. But its also the case that ALL the justices have that attitude, some just hold to that view more strongly. Scalia and Sotomayor still voted together much of the time even though the court doesn’t usually take cases unless an issue divides lower courts.

        To keep this in perspective. Its been 50 year since a Democrat appointed a supreme court justice who hadn’t attended Harvard or Yale. Lyndon Johnson appointed Thurgood Marshall. The last Republican appointee was Sandra Day O’Connor 35 years ago by Ronald Reagan. What we take to be the modern legal framework has been entirely shaped by a very narrow set of legal training.

        Of course, Reagan was the last President who didn’t attend Harvard and Yale before Trump was elected. Our governor and two senators also attended Harvard or Yale.So that extremely narrow intellectual tradition is not limited to the court. And it isn’t just an intellectual tradition. Its a very narrow and parochial community of people.

  • jon

    “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.”

    Has Gorsuch never been to an office where computers are used?

    Sure most people aren’t writing the great american novel… but that is true of most people regardless of if they have a computer from their work or not…

    But they are writing among other things, facebook posts, comments on news cut, emails to friends/family, etc.

    Sure they do work on them too… but it’s pretty clear that’s not all people are doing on their work computers, pretty much to anyone who has ever worked in an office environment…

    So Good luck to Mr. Gorsuch, may he one day understand how humans function and aspire to be more like them… That being said I can see why he’d be a selection for a supreme court appointment, what president wouldn’t want be the guy who appointed the first robot justice… it’s a legacy that will live on until spare parts are no longer available…

    • Jack

      I may use the work computer to read NewsCut but I would never comment on any article there. That’s why all my posts are early in the morning (during breakfast) or after I get home from work. The rare midday is from my iphone if I am lucky enough to get reception during my lunch break.

      But I take your point quite well – “breaks” are quality reading time for the MPR and StarTribune.

    • Laurie K.

      I found it incredibly callous of Gorsuch to compare an employee misusing a computer at work for personal gain to the trucker in this case using the vehicle in order to prevent serious bodily harm.

      • gibson707

        What if someone else had their brakes lock up and then slammed into his unattended trailer killing them? Or what if the contents of the trailer were stolen? Would it then be grounds to fire him?

  • Jay Sieling

    This is what struck me as absurd – Gorsuch: “Oh senator, I don’t know what I would have done if I were in his shoes. And I don’t blame him at all for doing what he did do. I empathize with him entirely.”… ” I totally empathize. Senator I don’t know. I wasn’t in the man’s shoes” Empathy means being in the other persons shoes. Taking perspective from that point of view. This waffling about this harsh dissent was absurd.
    I had a lot of respect for how Gorsuch handle himself and his answers until that point. He knows the law, seems reasonable. But the judgment in this case – and the unwillingness to empathize is a stark contrast to his folksy recollections of ‘mutton busting’.

    • BJ

      It’s easy to just say, “I would have left and I would have been not ok with them firing me, but the law – what I was upholding – didn’t allow me to take the human part of my being into consideration. I blame the legislature for writing a crappy law. Please Senator don’t write something I will take literally and expect me to guess at what you mean.”

      • What’s interesting about this is if you read any Supreme Court opinion in Minnesota, that’s pretty much all they do…try to interpret legislative intent. Sometimes they do so literally, some times they do so with deductive reasoning.

        • rosswilliams

          If the law were that clear, we would have no need for judges to decide anything would we? But the purpose of judges is to apply the laws in ways that serve justice based on human values. They aren’t supposed to be legal ciphers. If they were, we could just let a computer make the decisions.

          • BJ

            They are legal ciphers, that is an almost 100% description of the job of a judge.

          • rosswilliams

            The idea that judges are just ciphers running English language computer programs written by a collection of politicians is pretty frightening.

          • David Maynard

            I think what you are asking for here is precisely what the Supreme Court has been doing wrong in recent years. The courts purpose is to interpret and enforce the laws.

            Interpretation is far different than defining how a law my, or may not, be applied. Allowing the justices to go beyond interpretation is allowing them to legislate from the bench.

            In the care of the Supreme Court judging the constitutionality of a law is most often what they do. However that is, in the end, a yes or no answer. They can kick the law back, but not redefine the law, that is legislation.

            We have the senate and house for legislative duties. The basis of our system of government simply does not allow for the court to usurp the powers of the legislative branch and continue to be of government by the people.

          • It can’t possibly be a yes or no answer because of stare decisis. In fact, the whole concept of “stare decisis” presumes courts do what others would consider “legislating from the bench.” Precedent essentially sets case law, thus an act of establishing a legal principal that might trace BACK to the constitutino, but isn’t IN the constitution per se.

            It’s not a new thing: Pick any SCOTUS case and you’ll see more references to how the issue fits previous rulings than references to the words of the Constitution.

            It also means that the writers of the Constitution considered the document to envision all possible future scenarios. I tend to believe, given their obvious intelligence, that they were not that arrogant.

            Some people think, for example, that there’s no right to privacy, despite the Fourth Amendment.

            I tend to think the Constitution is about concepts, not words.

          • rosswilliams

            So where does the constitution give the courts the authority to determine whether a law is constitutional? It doesn’t. The court itself claimed that power in Marbury vs Monroe in 1803. So “recent years” actually goes back to immediately after the founding.

        • BJ

          The job of the judge is to use the law, and the context of it, to make a determination; only using the single line of the law as written is what makes for a poor judge, in my opinion.

          • kirby61

            But the line in this case is what it means when it says “refuse to operate” an unsafe vehicle. Narrowly or broadly, on that point I think Gorsuch is correct; Congress was talking about those situations where a boss orders someone to drive a company vehicle and he refuses because it isn’t safe: brakes are shot, tires are bald, etc. For whatever reason, they didn’t consider a situation where a driver’s safety may depend on operating the vehicle against orders. And I think part of the reason his opinion sounds ‘cold’ is that he’s so derisive of the majority’s assertion that ‘operate’ is a vague term that can encompass driving or NOT driving.

            Incidentally, this isn’t the first time an employee has disobeyed an order to protect his safety or life and been fired for it. I remember an incident from some years ago that upset a lot of people, and the (ex) employee’s reaction was basically, “My life is more important than a job” and that was it. If you want laws that give a generic right to disobey company orders or policy for the sake of safety or life get someone to pass those laws (I’m kind of surprised they don’t already exist)

          • If I read Gorsuch’s dissent correctly, it doesn’t matter what Congress was talking about or even intended. It only matters what the literal translation of the law itself says.

            But, on that point, the law — basically a whistleblower law — also says a person can’t be fired for refusal if:

            (ii) 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;

            Is freezing to death by the side of the road in subzero conditions because a power unit isn’t working and the gas gauge is below “emtpy” “reasonable apprehension of serious injury” because of the condition of a vehicle? Boy, it’s hard to see how it’s not.

          • Thinking more about this, it seems to me that sitting in a truck by the side of the road with the engine running still constitutes operating. It certainly would by Minnesota’s distracted driving laws in which you’re violating the law if your car is running and you’re on your smart phone.

            So what would a refusal to operate under the law consist of? Shutting the truck off?

            There’s merit to that assertion, I think. But it still doesn’t offer legal protection to the driver unless he stays with the vehicle. Is that “operating” the vehicle.

            if he got out and walked, that would certainly be a refusal to operate and, it seems to me, would be protected under the law. And yet, it would still mean abandoning the load, which is the reason he was fired.

          • BJ

            Gorsuch didn’t answer the question from Franken as to what the Trucker should have done (I forget the actual wording Franken used). Franken was floored by the answer he gave and so was I, except that I remembered that this is political theater and unless the Republicans don’t like him he will move forward. My hope is that he actually sticks to his literal interpretation of the words in the laws and doesn’t start making up things, I can live with a robot in the court.

          • Where it gets tricky is when the literal translation is extended to the fundamental tenets of the democracy. Such as “all MEN are created equal.” A robot would conclude that it refers only to those Americans with a penis.

          • rosswilliams

            Its not really at all tricky, the idea is just silly And the folks who argue for a literal translation quickly allow exceptions they take for granted. You won’t find many who defend yelling fire in a crowded theater, much less threatening someone or encouraging others to use violence. Yet all of those “abridge” freedom of speech.

          • BJ

            Yep.

          • stingynina

            Being a trucker…he should have paid attention to his fuel gauge….I think the guy did what he thought was best…living in Michigan winters, we don’t let our car gauges go below half a tank….just in case you end up in a ditch….lol

          • Apparently there was some SPECIFIC fuel depot he was supposed to use but he couldn’t find it. It’s unclear to me the timing of when that was

          • kirby61

            And I’m wondering why the statute doesn’t specifically encompass situations where you might need to drive a vehicle (against company orders) is necessary to protect yourself.

            But Idon’t see that it does. The only protected decision (in my reading) for the hazards you describe, and any others, is “refusal to operate” the vehicle. To me that sounds like not driving.

          • Boy, you know, if there’s one thing I learned covering appellate courts it’s that legislators and congress really stink at writing laws. :*)

            But, yeah, you’re right, what does it mean to “operate” and “not operate” a vehicle.

            We see this ALL the time in appellate cases, which is why I always says the most valuable book to judges is the dictionary and why I so enjoy reading opinions that are as much about eytmology as the law.

            Gorsuch didn’t really engage in that. He merely insisted that the law was about refusing to operate a vehicle not refusing to operate a vehicle the way an employer intended.

            The company’s problem with the whole thing, as i said earlier, is that he left the load behind. That’s something he would’ve done if he’d also left the tractor behind and walked to his near death.

            He’s basically saying the law doesn’t apply because the driver never refused to operate the vehicle, he just refused to follow the company’s direction on HOW the vehicle should be operated.

            So if the trucker had simply left the truck and walked, I’ll bet you he still would have been fired, only this time Gorsuch wouldn’t be able to use this particular argument.

            Gorsuch wasn’t really interested in knowing what Congress intended. If he had, he’d certainly find other provisions of the law that would provide plenty of clues to reveal that it really was about health and safety.

            I mean, geez, it’s really an interesting case and I can see both sides of this although, as usual, both sides insist there’s only one way to see it.

          • kirby61

            That the law at its core is “about health and safety” is one of those other points the majority made that I don’t think Gorsuch adequately rebutted.

            I do think Congress is at least partly to blame for the dispute. They were focusing on a serious, widespread problem (which I’m sure is still going on): employees being told to operate equipment they know is unsafe, or find another job. And it’s not just drivers; a welder friend of mine was seriously injured using a defective tool he and his co-workers had all complained to the boss about, but were afraid of losing their jobs if they refused to use it (buying a new one would have been cheaper than the settlement he had to pay my friend)

            A situation where the boss says DON’T use that equipment but the worker does for the sake of safety is probably much, much less common, but obviously it does arise, and a more general protection for disobeying orders when your health, safety or even life require it. I find it hard to believe there’s nothing in the Federal code anywhere that addresses that, but in the end the plaintiff won on this specific section of Federal labor law, so it’s hard to argue with that.

          • BJ

            This case was about a specific right to disobey order for safety sake, and Gorsuch didn’t think this trucker’s actions fit. Luckily the other judges did. So the line of questioning was to prove that he didn’t use good judgement in reaching his conclusion.

          • kirby61

            But you’re making the ‘general’ rather than specific. I’ve read the ruling and the dissent, and I think both conclusions are rational. Where I agree with Gorsuch is that “refusal to operate” a vehicle means refusing to drive it. The guy here didn’t refuse to drive, he drove.

            But again, there are other arguments the court made that at least make finding for the trucker a reasonable outcome.

          • I think that observation is exactly dead-on.

          • rosswilliams

            “Congress was talking about those situations where a boss orders someone to drive a company vehicle and he refuses because it isn’t safe: brakes are shot, tires are bald, etc. ”

            But that is what happened here. To get somewhere warm the driver could have tried to drag the trailer with locked brakes. In fact, that was suggested to him by the dispatcher. So he was faced with either dying of hyperthermia, driving unsafely or disconnecting the trailer. Gorsuch effectively said he could be fired for disconnecting the trailer because he had the option of sitting there in the unheated truck and dying of hyperthermia, which was not an unsafe operation of the vehicle.

            The failure to ground his abstract reasoning in reality is precisely why Gorsuch isn’t qualified to be on the Supreme Court, no matter how smart and clever he is.

        • Jay Sieling

          The comma case from Maine this past week is a good example.

  • Will

    The bad guy is the company that fires an employee for putting his own safety ahead of the delivery. The judge must look at the law and circumstances, even if he/she thinks a company/individual is wrong they must adhere to the words in the law. Then make it abundantly clear that the law should be adjusted to encompass a particular action if that was the intent.

  • Paul Wood

    This is the equivalent of writing someone a speeding ticket for driving 30mph on the interstate…It may be unsafe, like speeding is, but it’s the wrong law to apply.
    I’m no fan of corporate America, but i want law applied correctly. Trans Am should have been taken to court under OSHA regulations, not DOT.

  • Mountain man

    I would have called the ambulance and gotten a warm ride to the E.R. They and a state trooper would have been there in no time. No truck abandonment under dispatch if you call the ambulance for help. Also, your broken down truck on the side of the rode is a safety hazard to the driver and motorists and needs to be moved ASAP. It can get rear ended and they do. If they fire you for getting rushed to the E.R., then they will lose a lawsuit hands down for firing you because of a medical emergency. $$$