*This piece originally appeared on the Whistleblower Protection Law Blog.
by Jason Zuckerman, Principal, Zuckerman Law
If Judge Neil Gorsuch is confirmed, he will play a critical role in construing laws that protect worker health and safety, including laws protecting whistleblowers who suffer retaliation for opposing illegal or unsafe conduct that jeopardizes public health and safety. According to the Bureau of Labor Standards, 4836 workers were killed on the job in 2015—on average, that is more than 93 a week, or more than 13 deaths every day. As the Occupational Safety and Health Administration (OSHA) is already severely understaffed and will soon be further weakened by a political appointee charged with gutting it, the last thing workers need is an activist judge who has expressed disdain for worker-protection laws. But that is exactly what we can expect from Judge Gorsuch.
In a recent dissent in TransAm Trucking, Inc. v. Administrative Review Board, 833 F.3d 1206 (10th Cir. 2016), Judge Gorsuch demonstrated that he will construe worker-protection laws as narrowly as possible and that he deems worker “health and safety” as “ephemeral and generic” statutory goals. His opinion also reveals that his alleged values-neutral approach to statutory construction is intellectually dishonest. The majority decision affirming the whistleblower’s win at the Department of Labor was based on the plain meaning of the statute, well-established precedent construing the statutory term at issue and the purpose of the statute. Judge Gorsuch’s dissent, however, was arguably activist in that it rewrites the statute. In other words, Judge Gorsuch does not check his policy preferences or values at the courthouse door and render value-neutral decisions based on the dictionary definitions of statutory terms. Instead, as this opinion demonstrates, his alleged strict textualism appears to be a cloak for his policy preferences, including his apparent disdain for worker protection laws.
Background of TransAm Trucking Whistleblower-Retaliation Case
Alphonse Maddin worked as a truck driver for TransAm Trucking, Inc. (TransAm). He was driving a tractor-trailer down an Illinois freeway on a subzero night in 2009, when he noticed that his truck was nearly out of gas. He pulled over because he could not find a fuel station, and ten minutes later, the trailer’s brakes locked up due to the frigid temperatures. Mr. Maddin was unable to resume driving the tractor-trailer and reported the truck’s unsafe condition to a TransAm dispatcher. The dispatcher told Mr. Maddin that a repairperson would be sent to fix the brakes.
Mr. Maddin dozed off briefly and awoke to find that his torso was numb and he could not feel his feet. He told the dispatcher about his physical condition and asked when the repairperson would arrive. “[H]ang in there,” the dispatcher responded.
Half an hour later, Mr. Maddin called his supervisor, Larry Cluck, and told Mr. Cluck that his feet were going numb and that he was having difficulty breathing. Mr. Cluck told Mr. Maddin not to leave the trailer and gave him two options: drag the trailer with inoperable brakes, or stay put until the repairperson arrives. Mr. Maddin knew that dragging the trailer is illegal and concluded that he might not live much longer if he were to wait for a repairperson. So, Mr. Maddin unhitched the trailer and drove off.
Fifteen minutes after Mr. Maddin left—i.e., more than three hours after he first notified TransAm that he was stranded in subzero temperatures—the repairperson arrived. Mr. Maddin drove the truck back to meet the repairperson, who then fixed the trailer’s brakes. Less than a week later, TransAm terminated Mr. Maddin’s employment for abandoning the trailer.
Mr. Maddin filed a complaint with OSHA, alleging that TransAm violated the whistleblower provisions of the Surface Transportation Assistance Act (STAA) by firing him. OSHA dismissed the claim, but a Department of Labor (DOL) administrative-law judge (ALJ) later ruled, after a hearing, that TransAm violated the STAA. TransAm appealed, and the DOL Administrative Review Board (ARB) affirmed.
Mr. Maddin’s STAA Whistleblower-Retaliation Claim
The relevant STAA provision prohibits an employer from firing 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.” TransAm Trucking, 833 F.3d at 1211 (alteration in original) (quoting 49 U.S.C. § 31105(a)(1)(B)(ii)). An employee’s apprehension is “reasonable” if a reasonable person in the same circumstances “would conclude that the hazardous safety or security condition establishes a real danger of accident, injury, or serious impairment to health.” Id. (quoting § 31105(a)(2)). To prevail under this provision, an employee must demonstrate that he or she “sought from the employer, and [was] unable to obtain, correction of the hazardous safety or security condition.” Id. (alteration in original) (quoting § 31105(a)(2)).
The ALJ found, and the ARB affirmed, that Mr. Maddin had engaged in protected conduct when he unhitched the trailer and “refused to operate the truck under the conditions set by Mr. [C]luck.” Id. (alteration in original). TransAm argued, on appeal, that this finding was in error because Mr. Maddin had not “refused to operate” the truck but rather in fact “operated” the truck when he drove off without the trailer.
The Tenth Circuit engaged in a Chevron analysis to determine whether to defer to the ARB’s interpretation of the STAA. Because the statute does not define “operate,” the Tenth Circuit found that Congress had not “directly spoken to the precise question at issue.” Id. (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)). Therefore, the Tenth Circuit turned to the question whether the ARB’s interpretation was “based on a permissible construction of the statute.” Id. (quoting Chevron, 467 U.S. at 843).
TransAm argued, in effect, that “operate” was synonymous with “drive.” The ARB, on the other hand, interpreted “operate” to encompass driving as well as “other uses of a vehicle when it is within the control of the employee.” Id.
The Tenth Circuit looked to the purpose of the STAA whistleblower provisions—to “encourage employee reporting of noncompliance with safety regulations governing commercial motor vehicles.” Id. at 1212 (quoting Brock v. Roadway Express, Inc., 481 U.S. 252, 258 (1987)). The court found that the ARB’s interpretation of “operate,” and not TransAm’s, furthered that purpose because it “prohibit[ed] an employer from discharging an insubordinate employee whose insubordination was motivated by the employee’s reasonable apprehension of serious injury to himself or members of the public.” Id.
Therefore, the Tenth Circuit deferred to the ARB’s interpretation of “operate” and affirmed the ARB’s finding that Mr. Maddin’s unhitching the trailer and driving away in the truck, against his supervisor’s instructions, constituted a “refusal to operate” and so was protected conduct under the STAA. Id. at 1213. The court explained that “although Maddin actually drove the truck after unhitching it, he refused to operate his tractor-trailer in the manner instructed by his employer.” Id.
The Tenth Circuit found, moreover, that Mr. Maddin’s protected activity was a contributing factor in his firing. Id. Having found that the ARB’s findings—that Mr. Maddin engaged in STAA-protected conduct and was fired for doing so—were supported by substantial evidence, the Tenth Circuit denied TransAm’s petition for review.
Judge Gorsuch’s Dissent
Judge Gorsuch took issue with the ARB’s, and the majority’s, interpretation of “refusal to operate”:
The trucker in this case was not 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 is simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.
Id. at 1215–16 (Gorsuch, J., dissenting). Judge Gorsuch said the majority should not have even engaged in a Chevron analysis because the STAA is “perfectly plain.”
Relying on the Oxford English Dictionary, Judge Gorsuch found that “refuse” means “[t]o decline positively, to express or show a determination not to do something”; and “operate” means “[t]o cause or actuate the working of; to work (a machine, etc.).” Id. at 1216 (Gorsuch, J., dissenting) (alterations in original) (quoting The Oxford English Dictionary 495, 848 (2d ed. 1989)). Putting those two definitions together, Judge Gorsuch concluded that, under the STAA, “employees who voice safety concerns about their vehicles may decline to cause those vehicles to work without fear of reprisal” but may not “cause those vehicles to work in ways they happen to wish but an employer forbids.” Id. (Gorsuch, J., dissenting).
To illustrate the alleged absurdity of the majority’s contrary interpretation, Judge Gorsuch used an analogy: “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.” Id. at 1217 (Gorsuch, J., dissenting).
Judge Gorsuch then criticized the majority for its reliance on the STAA’s purpose of protecting public health and safety. In a statement revealing his policy preferences, Judge Gorsuch said that, particularly where a statute’s purpose is as “ephemeral and generic” as “health and safety,” the majority should stick strictly to the text of the statute. Id. (Gorsuch, J., dissenting).
Judge Gorsuch’s Dissent Reveals the Intellectual Dishonesty of his Alleged Strict Textualism
Read in isolation, Judge Gorsuch’s dissent sounds plausible. He takes a strict textualist approach to statutory interpretation and so rejects any consideration of legislative intent. But a closer examination reveals that his alleged use of textualism is really a cloak for his policy preferences.
Here, Judge Gorsuch purportedly relies on the Oxford English Dictionary to support his conclusion that “operate” means, by definition, “[t]o cause or actuate the working of; to work (a machine, etc.).” And the rest of his analysis follows naturally. But the same textualist approach was also relied upon by the majority to reach a contrary conclusion, one that is consistent with the purpose of the statute:
The dissent believes Congress’s intent can be easily determined by simply choosing a favorite dictionary definition of the word and applying that to quickly conclude the statute is not ambiguous at all. . . .
. . . We, too, have found a dictionary definition of the word “operate” and discovered it means to “control the functioning of.” This definition clearly encompasses activities other than driving. . . . The only logical explanation [for the dissent’s interpretation] is that the dissent has concluded Congress used the word “operate” in the statute when it really meant “drive.” We are more comfortable limiting our review to the language Congress actually used.
Id. at 1212 n.4 (emphasis added) (quoting Operate, Oxford Dictionaries Pro, http://www.oxforddictionaries.com/us/definition/american_english/operate).
Judge Gorsuch artfully concealed the discretion inherent in his analysis, and in doing so maintained the facade of being bound by the text of the STAA. Here, he used his discretion to conclude that an employee’s firing did not violate the STAA—even though that employee spent more than three hours in subzero temperatures, without heat, after notifying his employer that his trailer’s brakes had frozen—because the employee’s actions did not meet Judge Gorsuch’s cherry-picked definition of refusal to “operate.”
Instead of taking statutory text out of context, Judge Gorsuch could have relied upon well-established STAA precedent holding that an employee who moves a disabled trailer from the middle of a busy roadway to the shoulder of the road, after being told by his employer to remain in the roadway, has refused to operate his vehicle for purposes of the STAA whistleblower law. He could also consider the purpose of the statute the majority relies upon: “to promote the safe operation of commercial motor vehicles,” “to minimize dangers to the health of operators of commercial motor vehicles,” and “to ensure increased compliance with traffic laws and with . . . commercial motor vehicle safety and health regulations and standards.” 49 U.S.C. § 31131(a).
Judge Gorsuch’s dissent fails to address the fact that Mr. Maddin’s supervisor gave him another option other than waiting in the truck without heat—dragging a 41,000-pound trailer with inoperable brakes, which is prohibited by Department of Transportation regulations. Mr. Maddin refused to carry out that instruction, and therefore he is protected under the STAA. And Judge Gorsuch’s dissent does not address the ARB’s finding that Mr. Maddin engaged in STAA-protected conduct by reporting the faulty condition of the trailer (i.e., the frozen brakes).
Judge Gorsuch will likely testify at his confirmation hearing that he is a values-neutral umpire who interprets statutes according to their plain meaning. Here, the umpire had two choices in a case decided under substantial-evidence review—a standard of review that is highly deferential to the agency. Option One was to rely on the majority’s equally compelling dictionary definition that favored the worker, the purpose of the STAA whistleblower law, well-established case precedent construing the STAA, and common sense. Option Two was to rely upon an out-of-context dictionary definition to reverse the agency, while omitting key facts from the record and ignoring case precedent and the purpose of the statute. Is it a mere coincidence that Option Two favored the employer and left the worker out in the cold? It strains credulity to claim that the author of this dissent is merely calling balls and strikes.
Judge Gorsuch’s Derision of Worker-Protection Laws
Perhaps more revealing than Judge Gorsuch’s selective use of the dictionary, however, are his characterization of “health and safety” as “ephemeral and generic” statutory goals, as well as the wording and tone of his dissent. Judge Gorsuch refuses to consider the purpose of the STAA whistleblower-protection law because “[a]fter all, what under the sun, at least at some level of generality, does not relate to ‘health and safety’?” TransAm Trucking, 833 F.3d at 1217 (Gorsuch, J., dissenting). If Judge Gorsuch were construing the Religious Freedom Restoration Act, however, he would very likely consider and apply the purpose of the statute. But according to Judge Gorsuch, the remedial goals of worker-protection laws should be ignored when construing those laws.
Note that in his dissent, Judge Gorsuch does not once refer to Mr. Maddin by name. Instead, he refers to Mr. Maddin repeatedly as a “trucker” and once as an “employee.” TransAm, on the other hand, is identified by name several times throughout the dissent. Moreover, Judge Gorsuch states that Mr. Maddin was stranded in “cold weather” and omits the fact that Mr. Madden was stuck in a truck, without heat, in subzero weather and feared losing his feet, dying and never seeing his family again. Minimizing Mr. Maddin’s precarious predicament enabled Judge Gorsuch to analogize Mr. Maddin’s conduct to that of an office worker who misused a work computer to “compose the great American novel.” Id. (Gorsuch, J., dissenting). But presumably, the officer worker’s appendages are not going numb in this irrelevant analogy. Given Judge Gorsuch’s dehumanization of Mr. Maddin, it is no surprise that he admits in his dissent that he deems “health and safety” to be “ephemeral and generic” statutory goals.
According to the National Highway Traffic Safety Administration, there were approximately 3500 fatal crashes involving large trucks from 2011–2014. There is nothing “ephemeral” about laws regulating the safe operation of tractor-trailers or a whistleblower-protection law that enables truck drivers to refuse to drive unsafe vehicles. As Judge Gorsuch sat comfortably in his chambers, penning his dissent, did it occur to him that human lives are at stake when TransAm orders a driver to drag a 41,000-pound trailer with frozen brakes? Did this “pro-life” jurist consider that Mr. Maddin was having difficulty breathing and his appendages were going numb when he pleaded with his supervisor for permission to drive the truck, without the trailer, to a nearby gas station? Apparently, all those considerations, along with the purpose of the statute, are irrelevant where a cherry-picked dictionary definition enables Judge Gorsuch to construe a remedial law narrowly enough for the employer to prevail. If Judge Gorsuch is really acting as a values-neutral umpire, why does he deride the purpose of the STAA whistleblower-protection law as “ephemeral” and “generic”?
Many American workers often face the daunting choice of engaging in unsafe practices on the job or instead losing their jobs for opposing such practices. Federal enforcement of worker-safety and worker-protection laws is already feeble due to Congress’s deliberately starving OSHA of resources. And with a new Administration committed to gutting worker-safety laws and enforcement thereof, we can expect that the current unacceptable number of workers killed on the job—4836 in 2015—will increase. Judge Gorsuch’s dissent in TransAm Trucking portends that such laws will be further crippled using sham textualism.
Undoubtedly Judge Gorsuch is a talented jurist and dedicated public servant. But the “forgotten man” that President Trump claims to represent would be far better served by a mainstream jurist, such as Judge Merrick Garland, who would be faithful to the statutory language and purpose of worker-protection laws.