The “Frozen Trucker Case” — Why Both Gorsuch and the Court Majority Were Wrong.
Senator Al Franken grilled Supreme Court nominee Neil Gorsuch for his dissent in Trans Am Trucking v. Department of Labor, calling the opinions “cold” and “absurd.” Having reviewed the case I have decided that both Gorsuch and the majority decision were wrong, here’s why.
A trucker, Alphonse Maddin, stopped for fuel on a bone chilling subzero night and discovers his break lines for the trailer have frozen. This obviously makes the vehicle, with the trailer, unsafe. He called his company’s “Road and was told to wait for a repair truck that was being sent to his location. The heater for the cab unit of the truck was not working and temperatures plummeted.
As he lost feeling in his torso and limbs, Maddin began to fear he could freeze to death as over three hours passed with no repair truck arrival. He made increasingly desperate calls to Road Assist. He was told that he could either drive the vehicle with no brakes or wait for the repair truck, but that under no circumstances was he to abandon his load. He waited another half hour, before in fear of his life, he violated those orders by disconnecting the load and driving off in the cab.
As fate would have it, 15 minutes later the repair truck arrived. Maddin’s company fired him for abandoning the load in violation of the orders he received.
Maddin sued claiming his termination violated the Surface Transportation Assistance Act’s (STAA) whistle blower provisions. These provisions prohibit adverse employment action against an employee who “refuses to operate” an unsafe vehicle. The meaning of the phrase “refuses to operate” was the disputed question. The Department of Labor Administrative Review Board (ARB) ruled in favor Maddin holding his action of abandoning the trailer (with its frozen brakes) and driving off in his cab was protected under this statute.
The Court’s Decision
The Court applied the well known “Chevron Doctrine” based on the United States Supreme Court case Chevron v. Natural Resources Defense Council. The Chevron Doctrine provides courts a two prong test for evaluating some agency decision making.
- Does the statute speak directly to the question? If so then the court must apply the statute and reject the agency’s decision if it conflicts with a statute that directly resolves the matter.
- If the statute does not directly address the question the court shall show great deference to the agency decision, reversing it only if the agency’s decision was “arbitrary and capricious.” The Chevron Doctrine regards agencies as experts for the statutes they enforce and demands that courts generally defer to that expertise unless the agency’s action is clearly unreasonable.
In taking up this evaluation the court majority concluded that under prong 1 the statute does not speak directly to the issue because the statute provides no definition of “operate” or “refuses to operate.” Moving to prong 2 the court majority concluded the decision of the ARB was not arbitrary and capricious because its interpretation of the statute was reasonable. The court majority held that the Department of Labor’s interpretation was consistent with the statute’s general intent (which is stated in the statute) “to minimize dangers to the health of operators of commercial motor vehicles.”
Gorsuch dissented, arguing that the evaluation should have stopped at prong 1 of the Chevron Doctrine because the statute did speak plainly to the question. Gorsuch argued that Maddin was not fired for “refusing to operate” his vehicle but rather for operating it. Having been told to stay put and wait for the repair truck, Maddin disconnected the trailer and drove off in the cab. In Gorsuch’s view that removed him from the protections of a statute that applied only to a refusal to operate.
Gorsuch did question whether Trans Am’s decision to fire Maddin “was a wise or kind one” but correctly noted that “it’s not our job to answer questions like that” but only to answer whether the employer’s decision was a legal one.
Why Both Are Wrong
The preoccupation with which prong of the Chevron Doctrine applied is in error because the Chevron Doctrine is not the correct standard for this case. The Chevron Doctrine applies to formal agency rules, promulgated under Section 553 of the Administrative Procedures Act. The core of that process is that the agency first proposes the rule, then allows the affected parties and industries to comment on it, and then the agency responds to those comments. This process is normally carried out in the Federal Register. It is these formal regulations, that go through the notice and comment process, that are entitled to the high level of deference afforded agency decision making by the Chevron Doctrine.
Thus, had the Department of Labor proposed a regulation defining to “refusing to operate” to apply to circumstances such as occurred here, allowed the industry to comment on it, and then responded to those comments prior to enacting the regulation, the deference demanded by Chevron would be applicable. However, that is not what happened. Instead the agency’s own adjudicative body (the ARB) reviewed the matter and applied this broader definition.
What Should Have Happened
In my view the trucker still should have won. I believe the key fact, generally ignored by both the court majority and Gorsuch’s dissent, is that the company told the trucker to either drive the truck with the trailer’s frozen brakes (which everyone agrees would have been unsafe) or to stay put. Put simply, the company did give him an illegal option, which Maddin refused to do. Maddin did refuse to operate an unsafe vehicle, instead he made it safe to operate by disconnecting the trailer.
Gorsuch dismissed the company’s suggestion to drive the vehicle with the frozen brakes as “maybe sarcastically offered.” This “maybe” is a fact question. With Chevron gone the standard moves to one of whether the agency’s decision is supported by the “substantial evidence.” Gorsuch’s “maybe” is not supported by the substantial evidence and there is no basis for any conclusion that the trucker believed the suggestion to have been “sarcastically offered.”