Thursday, March 23, 2017

Textualism, Gorsuch Confirmation, And A Microcosmic Case, Trans Am Trucking


Gorsuch hearing: the microcosmic case more fully described.

....statute forbids employers from firing employees who “refuse[] to operate a vehicle” out of safety concerns...

Here a trucker in work was driving a truck attached to a trailer. 

The breaks on the trailer froze in a freezing cold night. 

The trucker pulled over and was told by the employer company to wait for help to come. In the meantime he was facing hypothermia. 

So he detached the truck from the trailer and drove it to get some warmth. 

The company fired him.

The driver moved, filed a complaint, before the labor board against being fired.

The board dismissed his complaint. 

The trucker then appealed to a reviewing tribunal. 

It reversed the dismissal of the complaint and awarded back pay and ordered reinstatement. 

The company then sought a further administrative review and was shut down there too. 

Then the company sought judicial review to the 10th Circuit.

A majority of the court, two judges, denied the company's petition for review.

Gorsuch dissented.

The issue turned on the construction of the initially noted provision that more fully reads, as cited by the majority.

...49 U.S.C. § 31105(a)(1)(B)(ii) ...makes it unlawful

 for an employer

 to discharge an employee



to operate a vehicle 

because . . . 

the employee has 

a reasonable apprehension


serious injury to the employee or the public 

because of 

the vehicle’s hazardous safety or security condition..."

All those deciding for the trucker held that refusing to operate included his unhitching his truck from the trailer and driving off to get some warmth back in his body.

Gorsuch saw it differently: (I've broken this into smaller paragraphs) pages 19--23:

....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. 

My colleagues suggest that the Department should be permitted to read the statutory phrase “refuse[] to operate” to encompass its exact opposite and protect employees who operate their vehicles in defiance of their employers’ orders. 

They justify this unusual result on the ground that the statutory phrase is ambiguous... 

...the statute is perfectly plain — and plainly doesn’t capture the conduct here — just as TransAm suggests. 

The term “refuse” means “[t]o decline positively, to express or show a determination not to do something.” 8 The Oxford English Dictionary 495 (2d ed. 1989). 

Meanwhile, “operate” means “[t]o cause or actuate the working of; to work (a machine, etc.).” 10 id. at 848. 

Putting this together, employees who voice safety concerns about their vehicles may decline to cause those vehicles to work without fear of reprisal. 

And that protection, while significant, just does not give employees license to cause those vehicles to work in ways they happen to wish but an employer forbids... (the majority's) 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...

In a nutshell:

1, "refuse to operate" doesn't mean or include as a meaning "to operate."

2, The harshness of the result doesn't obviate that plain lexicality.

3, The harshness can't justify judges calling the provision ambiguous when it's not.

4, It can't justify judges adding words to legal provisions to change significantly their meaning.

5, it can't justify judges resorting to statutory purpose, here employee health and safety, to make clear words mean something different than what they say.

6, It's for the legislature to add legislatively such words as will cover the scenario the facts of this case raise. 

And there you have it, textualism in stark practice, for good or for ill,  vividly illustrating a major theme running throughput h the hearing, and explicitly dividing what conservative judges do and what liberal judges do.

For good or for ill.

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