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TransAm Trucking v ARB: Time to Freeze Out Judge Neil Gorsuch?

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About The Author

Keir Baker (Consulting Editor)

Keir is a Trainee Solicitor currently sitting in the Finance department at a major US law firm. A law graduate from Selwyn College, Cambridge University, his main areas of interest are Employment, Discrimination and Competition law. Outside the law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

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I had a career in identifying absurdity, and I know it when I see it.

Senator Al Franken

This week saw the opening of the Senate Judiciary Committee’s confirmation hearing for Donald Trump’s nominee for the seat on the US Supreme Court left open by the death of the late Antonin Scalia. Its twenty members are grilling Neil Gorsuch, a widely respected judge currently serving on the 10th US Circuit Court of Appeals, on a wide variety of issues to verify his suitability for the country’s highest judicial office.

For any Supreme Court nominee, this is an important event. A strong performance in the Committee hearing is vital to convince a Senate that, despite the oft-partisan nature of US politics, has over the years refused to approve roughly one-fifth of the grand total of 151 nominees. However, Gorsuch J’s confirmation hearing is of especial magnitude considering the divided nature of US politics and the current make-up of the Supreme Court; if Gorsuch J is confirmed, he will return the balance of power to the Conservative bloc of justices.

It follows that there may be some political manoeuvring at work here: the Democrats on the Committee  wary that Gorsuch J and his Supreme Court colleagues will potentially decide cases on major issues like gay marriage, abortion and gun control in the coming years – are likely to try and portray Gorsuch J as unfit for confirmation. To do so, they will pour over his qualifications, his past judgments and his extra-judicial writings.

It is largely accepted that Gorsuch J fits the mould for a Supreme Court justice: to many, his endorsement of the philosophy of textualism leaves him the natural successor of Scalia J. He has degrees from Columbia, Harvard and Oxford Univeristies and clerked for Supreme Court justices Byron White and Anthony Kennedy. And while many of his past judgments are underpinned by his conservative outlook, there are none which seem to leave him unfit for Supreme Court.

Except one: the case of TransAm Trucking v ARB [2016]. Raised often by the Democrats on the Committee throughout the opening two days of the hearing, Gorsuch J’s dissent in this case sheds light on certain concernings views that resonate beyond its facts. Indeed, as this article will examine, the case highlights how the strength of his belief in the judicial philosophy of textualism is such that any confirmation of Judge Neil Gorsuch as the next Justice of the US Supreme Court by the Senate would be a highly concerning one indeed.

TransAm Trucking v ARB

The Facts

Alphonse Maddin (M) was employed by Transam Trucking (T) as a truck driver. In January 2009, M was driving a tractor-trailer with a cargo of meat through the state of Illinois in sub-zero temperatures. At around 11pm, he stopped on the side of the road for ten minutes to deal with an issue of low fuel before attempting to begin his journey again. However, in doing so, he discovered the brakes on the trailer has frozen solid. He called T to report this and was instructed to wait for the employer’s repair service to reach his location. Shortly afterwards, he discovered the heater in the cab of the tractor was broken.

While waiting for the repair service to arrive, M fell asleep for around three hours before being awoken by a call from his cousin, who would testify that M’s speech was slurred. M also realised his torso was numb and that he could not feel his feet. He called T again to ask about the location of the repair service and was told to continue to wait. Concerned about his safety, M called again thirty minutes later. His supervisor, a more senior employee of T, told M to either remain where he was or drive with the trailer, despite its frozen brakes.

M followed neither instruction. Instead, he unhitched the trailer from the tractor and drove away to seek shelter. However, fifteen minutes later, M was informed that the repair service had arrived – he, therefore, returned to the trailer and, once the repairs were complete, he finished the initial delivery. Less than a week later, M was fired for violating T’s company policy by abandoning his load while on duty.

The Issue

For the purposes of this article, the key issue of this case concerns the ‘whistle-blower’ provisions of the Surface Transportation Assistance Act 1982 (STAA 1982). More specifically, Section 405(a)(1)(A)(ii) of the STAA 1982 states that an employer may not discharge an employee who ‘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’.

T did not dispute that M had a ‘reasonable apprehension of serious injury’ if he either stayed with the trailer or drove away with the trailer attached. T did also not dispute that the trailer’s frozen brakes were unsafe. However, T argued that, by driving the tractor away from the trailer, M had actually operated his vehicle and it was wrong to conclude M’s conduct fell within the definition of a refusal ‘to operate’. Instead, T argued, M had abandoned company property.

The Majority Decision

By a 2-1 majority, the 10th US Circuit Court of Appeals upheld the decision of the Administrative Review Board of the Department of Labour (DoL) in favour of M. Murphy J, with whom McHugh J agreed, concluded that M’s actions in refusing to obey the instructions and driving away to seek safety were protected by the STAA 1982.

They rejected T’s argument that, by driving off in the tractor without the inoperable trailer, M had not refused to operate the vehicle. It noted that T was attempting to equate the term ‘operate’ with driving, but had not provided any authority for such a narrow interpretation of the term and how that would further the purposes of the STAA 1982.

The majority deferred to the DoL’s interpretation of what constituted the ‘operation’ of a vehicle under the statute, citing the so-called ‘Chevron defence’ rule. Originating from Chevron U.S.A. v Natural Resources Defense Council [1984], this rule holds that where a statute is ambiguous and Congress has delegated interpretive power to an agency (such as the DoL), then courts must defer to any reasonable interpretation by the agency.

In TransAm Trucking v ARB [2016], the majority noted that the STAA 1982 did not define the word ‘operate’. It examined the DoL’s definition – that ‘operate' encompasses not only driving but other uses of a vehicle when it is within the control of the employee – and concluded it reasonable, in light of the purpose for which Congress had passed the statute: to protect employees from being fired for bringing safety risks to their employers’ attention. 

Gorsuch J’s Icy Dissent

In his dissent, Gorsuch J disagreed with the majority’s analysis of the term ‘operate’. He agreed with T’s argument that, by driving away the tractor, M had ‘operated’ his truck and therefore lost the protection afforded by STAA 1982 to employees who ‘refuse to operate’ their vehicles. Indeed, Gorsuch J was acerbic as he suggested M 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.

The latter part of this extract is emblematic of one element of Gorsuch J’s judicial philosophy evident in his decision in Gutierrez-Brizuela v Lynch [2016]: a rejection of ‘Chevron deference’ on the grounds that it is independent judges who should decide what the law is rather than permitting, through deference, the law to be decided by agency officials.

In TransAm Trucking v ARB [2016] itself, Gorsuch J was critical of the majority’s view that a lack of a statutory definition is enough to render a statutory term ambiguous. He cited several cases, including Hackwell v United States [2007], in which courts have found a statute unambiguous after examining the dictionary definition of its terms, but continuing to discuss the definitions of ‘operate’ and ‘refuse’ from The Oxford English Dictionary.

Gorsuch J’s dissent also lays bare another major element of his judicial philosophy: his belief in textualism. Textualism, a statutory interpretation method long associated with Scalia J, holds that it is just the objective meaning of the text of a statute that is used to determine the meaning of the legislation – no regard can be had to, and no attempt should be made to determine, the statutory purpose or legislative intent behind it. It is a belief consistent with the so-called ‘plain meaning rule’: a word is determined by its dictionary definition, its placement in the body of the text, and its common usage at the time the statute was written. The judge, therefore, does not consider supporting or supplementary sources, such as modern social policy or legislative history, when interpreting a statute.

In TransAm Trucking v ARB [2016], Gorsuch J outlined some arguments in favour of this approach. He noted that many legislative purposes – such as ‘health and safety’ in this case – can be ‘ephemeral and generic’ and that ‘statutes are products of compromise’ that are ‘necessary to overcome the hurdles of bicameralism and presentment’ that characterise the US political system. It follows, in his view, that it is inappropriate for judges to do no more than enforcing the terms of that compromise ‘as expressed in the law itself.’ He continued in relation to the STAA 1982 by noting that:

Maybe Congress would not have been able to agree to [a detailed code on the issue]. Or maybe it just found the problem too time consuming and other matters more pressing. Or maybe it just didn’t think about the problem at all. Whatever the case, it is our job and work enough for the day to apply the law Congress did pass, not to imagine and enforce one it might have but didn’t.

Ultimately, for Gorsuch J, the majority’s decision was an example of the judiciary going beyond its remit:

It might be fair to ask whether [T’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.

Why Gorsuch J Deserves a Frosty Reception

It is hard to deny that there is sense behind his opposition to Chevron deference and some logic in the theory of textualism which Gorsuch J seeks to uphold: ultimately, both come down to the idea that the democratically elected legislature is losing its rights to make law in accordance with the will of the electorate and have its law interpreted by independent judges.

However, there comes a point that the application of textualism must give way to the application of something else, whether it be common sense or perhaps a degree of humanity. Scalia J is often quoted as saying “I'm an originalist and a textualist, not a nut”, and there are elements of Gorsuch J’s dissent in TransAm Trucking v ARB [2016] that, concerningly, suggests that he may not be as self-aware of his predecessor. Indeed, as Jed Handelsman Shugerman has suggested, Gorsuch J’s dissent in TransAm Trucking v ARB [2016] illustrates ‘a big hole’ in Gorsuch J’s opposition to Chevron deference; namely, that ‘judges can abuse statutory interpretation just as badly as bureaucrats.’

One prime example of the concerning level of Gorsuch J’s adherence to textualism is evident in an analogy he set forward when considering the definition of ‘refuse to operate’:

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.

This analogy is problematic by virtue of its lack of recognition of the context underpinning the TransAm Trucking v ARB [2016] case: at no point is Gorsuch J’s hypothetical employee life and safety under any threat. Indeed, as Scalia J accepted in K-Mart v Cartier [1988], textualism looks to the ordinary meaning of the language of the text by reference to the ordinary meaning of the text, not merely the possible range of meaning of each word. Thus, Gorsuch’s J refusal to consider the context suggests a dangerous adherence not to textualism, but to the plain meaning rule. It also raises concerns, as Jed Handelsman Shugerman points out, that he may ‘oversimplify future cases when it suits his ideology’.

There is also evidence that Gorsuch J’s rigorous textualism will lead to his contradicting of his own philosophy. After using The Oxford English Dictionary to conclude that he did not find the word ‘operate’ ambiguous, Gorsuch J declared that no possible meaning beyond ‘drive’ was reasonable. As the majority in TransAm Trucking v ARB [2016] noted in a long footnote to its opinion, this represents – in what constitutes a beautiful piece of irony – Gorsuch J changing the statutory wording of ‘operate’ to ‘drive’.

Finally, it can be questioned whether Gorsuch J’s conviction to adhere to textualism in TransAm Trucking v ARB [2016] shows a tendency for the philosophy to preventing him from relenting for the sake of humanity or justice. Indeed, as Senator Al Franken noted in the Committee Hearing, Gorsuch J’s decision in TransAm Trucking v ARB [2016] to either overlook or not apply the doctrine of absurdity that forms a part of the textualist methodology can lead to questions raised about his judgment.

The doctrine of absurdity holds that, where a strictly literal interpretation of a statute could lead to a seemingly absurd result, a common-sense interpretation should be preferred. Though oft-limited by textualist writers to cases where the absurdity is correctable by a ‘simple’ modification and where, in the words of Joseph Storey, ‘the absurdity and the injustice of applying the provision to the case would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application’, this doctrine has been applied by Scalia J, who gave some historical examples in K-Mart v Cartier [1988]:

The common sense of man approves the judgment… that the Bolognian law which enacted 'that whoever drew blood in the streets should be punished with the utmost severity', did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling… that the [old English] statute, which enacts that a prisoner who breaks prison shall be guilty of a felony, does not extend to a prisoner who breaks out when the prison is on fire.

In relation to TransAm Trucking v ARB [2016], it surely must be considered to be absurd that T were within their legal rights to fire M because he made the choice that, instead of staying put and potentially dying of hypothermia or driving away with the trailer attached – the broken brakes potentially putting the lives of other roads users at risk – to take the third option which he took. And it is mightily concerning that Gorsuch J gave no consideration to this in his dissent.


Given that the Republicans control the Senate by 52-48, it is more likely than not that Gorsuch J will be confirmed. ‘On paper’, as the phrase goes, his qualifications and experience suggest that it is a sound decision. However, his opinion in TransAm Trucking v ARB [2016] suggests there is something more – something concerning – about the youngest Supreme Court nominee in the last 25 years. It is hoped that this case is an anomaly, and it is not indicative of a wider tendency of Gorsuch J to oversimplify cases and take statutes out of context to serve his own ideology, the flaws and limits of which he seems to have failed to recognise.

The political atmosphere in the US is currently so toxic, the country so divided by ideology that the country will be relying on its judiciary perhaps more than ever. His dissent in TransAm Trucking v ARB [2016] suggests Gorsuch J might not be the right judge in which Americans should place their trust.

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Tagged: Courts, Employment Law, Justice, Supreme Court, The Judiciary

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