Armando GONZALEZ, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellee.
No. 84-1149.
United States Court of Appeals, Fifth Circuit.
March 28, 1985.
1179
Finally, the general complaints that Gravel‘s professional performance was inadequate are not persuasive. Gravel explained his defense strategy and his reasons for not filing certain motions urged by McQueen. He explained why he had not objected to certain evidence. His comments were articulate, incisive, and reflected familiarity with the case. The recognition by the state trial judge and federal district judge of Gravel‘s ability and reputation as an experienced criminal defense lawyer, and the finding that he was effectively defending McQueen prior to his dismissal, is supported by the record. There is no evidence that Gravel‘s performance as trial counsel fell below the threshold established in Strickland v. Washington, U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rather, Gravel defended his client ably and tenaciously under difficult circumstances created by McQueen who lectured his counsel, filed pro se motions contrary to those advised by his attorney, and obviously thought his view of the best defense strategy was superior to that of his experienced criminal trial lawyer.
The decision of the district court is AFFIRMED.
Robert Madden Hill, Circuit Judge, dissented and filed opinion.
Dan C. Dargene, Charles C. High, Jr., El Paso, Tex., for defendant-appellee.
Before RUBIN, TATE, and HILL, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
It is a criminal offense under the Federal Employers’ Liability Act1 to discipline any person for voluntarily furnishing information to a “person in interest” about the fаcts incident to an injury to an employee. Moreover, an employee who furnishes information about an injury to an FELA plaintiff or his lawyer may obtain injunctive relief without exhausting administrative remedies if his employer discharges him for furnishing such information.2 The issue is whether an employee may obtain injunctive relief without exhausting administrative remedies when a railroad discharges him for filing an alleged false accident report with the railroad itself. We conclude that such an employee is entitled to a judicial determination whether he knowingly filed a false report and is not protected by the Act or whether he supplied information believed by him to be true and is protected. If the report is not shown to be deliberately deceitful, the employee is entitled to job-protection by injunction. We remand the case for a factual
After a doctor diagnosed a railroad employee‘s health problem, on August 22, 1983, as a hernia requiring surgical repair, the employee filed a belated report of an on-the-job injury that supposedly occurred on August 15. Armando Gonzalez, a fellow employee, was not at work on August 15, but he filed a report of the claimed accident that suggests, if it does not assert, that he witnessed it.3 After a company-investigation hearing, the railroad concluded that Gonzalez‘s report was false and discharged him for dishonesty. In accordance with the collective bargaining agreement between the railroad and his union, Gonzalez filed a grievance seeking reinstatement and back рay. The grievance is now at the management appeals stage, and Gonzalez has not exhausted his administrative remedies under the Railway Labor Act.4 Gonzalez also sought a preliminary injunction, which was denied by the district court, based primarily on its conclusion that
The statute, the full text of which is set forth in the footnote,6 provides in relevant part:
“Any ... rule ... or device whatsoever, the ... effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void....”
In Hendley v. Central of Georgia Railroad Co.,7 we held that
Employees who consider testifying in an FELA case will understandably hesitatе if they know that they may be forced, as Hendley was, to undergo a formal investigation and possibly suspension for a lengthy period of time. The fact that the employee may ultimately prevail is of little assurance to one who faces possible unemployment for a year or more. Thus, the disciplinary procedure not only violates the mandate that an employer refrain from disciplining an employee for furnishing information, it also becomes a device the “effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest.”10
Had Gonzalez given a deposition to the injured employee‘s lawyer, therefore, there would be no question that he could invoke the protection of
The statutory prohibition, however, is not limited to protection for those who furnish information to “employees,” or “employee‘s representatives.” It extends to statements made to “a person in interest” (the words being thrice repeated). The railroad itself is certainly a person in interest, but it urges us to substitute our reading of Congress’ purpose for the language of the statute. We decline the invitation to substitute our divination of congressional intent for the words Congress chose to use.
If a statute is not clear, resort to legislative history is the long-sanctioned method of seeking the statute‘s meaning.11 While this process is referred to as “seeking the intent of Congress,” it does not attempt to probe retroactively the collective mind of a majority of the Senate, the House, and of the President, who signed the bill thus making it law, but is an aid to clarification of the words used. Nevertheless, “[a] fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary common meaning.”12 Moreover, “[a]bsent a clearly expressed legislative intent to the contrary, that [statutory] language must ordinarily be regarded as conclusive.”13 While we recognize that, “[w]hen aid to construction of the meaning of words, as used in the statute, is avail
When a railroad employee is injured without the intervention of a third person, there are only two persons in interest: the employee and the railroad. If the employee dies, the representatives of his estate become persons in interest.17 But the railroad remains the othеr person in interest. We cannot, therefore, read the statutory phrase as if it said less than it does. Surely Congress knew how to use, and in the statute artfully did use, the word “employee” when it meant employee. The statutory language, therefore, clearly covers an employee‘s submission of an accident report to the railroad.
Moreover, the purpose of
Our dissenting brother finds the statute ambiguous and resorts to legislative reports for its true meaning. He concludes that “it is undeniablе that the legislative history of
The language used in the Congressional reports is no more precise than the language in the statute. Some of it might be cited in support of our interpretation of “person in interest.”20 Our brother agrees with us that the extent of protection under
Like all other historical accounts, legislative chronicles do not tell a single tale, and, therefore, resort to the language of the
The purpose of the statute is to protect employees who supply information to help FELA claimants. That purpоse is served by the result we reach,24 and those employees who knowingly supply false information are not protected. It also is more readily administered. The very employees who supply FELA plaintiffs with information may also be required to file accident reports with their employers. If only furnishing information to employees is protected, an employer might discharge an employee for doing so under the pretext that the discharge is for filing the accident report with the employer. The interpretation reached by our brother, therefore, would create the possibility that employers might subvert the purposes of
The railroad‘s reliance on two circuit court opinions that have refused to expand the protection of
The railroad also contends, however, that it has not enforced a rule against or discharged an employee for furnishing information, but has instead acted to enforce a rule that prohibits the filing of required reports that are false. We agree that the Act was not designed to protect FELA witnesses if they deliberately give information known by them to be false and that nothing in its language compels a contrary conclusion. As we stated in Hendley, our interpretation of
The district court did not determine whether Gonzalez‘s statements in the accident report were true or false, but held that this question was “beside the point” since it found that
Ordinarily a plaintiff must show a substantial threat of irreparable harm in
The key issue remains: was Gonzalez‘s conduct of the kind shielded by
This resolution is not inconsistent with the exclusive jurisdiction of the grievance procedures under the Railway Labor Act.29 “The question of whether a particular disciplinary [action] violates
For these reasons, the case is REVERSED and REMANDED for proceedings consistent with this opinion.
ROBERT MADDEN HILL, dissenting:
The majority today holds that an employer covered by the Federal Employers’ Liability Act is a “person in interest” under
The main impetus behind my dissent is the clarity of the legislative history surrounding the passage of
Section 60 was added to the FELA in 1939.1 It was a response to the widely observed railroad company policy, often embodied in company rules, of penalizing employees for reporting information concerning accidents on the lines.2 The rulеs usually prohibited employees, under penalty of discharge, from reporting such information to anyone except the company itself.3 In fact, each of the ten rules used as an example by the sponsor of the amendment at the Senate hearing made an explicit exception for information furnished to the railroad company itself.4 While less than noble, the reason for the rule and its exception is obvious and logical: in the adversarial context of FELA litigation, the railroad companies desired to deny pertinent information to all but their own lawyers and representatives. In
As first proposed, the amendment contained no “person in interest” phrase at all, the pertinent text providing as follows:
Any device whatsoever, the purpose, intent or effect of which shall be to prevent employees of any common carrier from furnishing information as to the facts incident to the injury or death of any employee, shall be void....7
The railroad companys objected to the absence of a referent for the phrase “furnishing information” but only because it would encourage investigations by so-called “ambulance chasers and shysters.”8 The proponent of the bill therefore proposed the “person in interest” phrase at the Senate Hearing expressly for the purpose of denying information to such person.9 The Senate committee adopted the amendment adding the language “to a person in interest or his representative” at the proper place.10 It then reported the bill to the full Senate stating, as an objective of the bill, that “[i]t prohibits the promulgation or enforcement of rules which penalize railroad employees for giving information concerning accidents to the injured person or his representative.”11 Specifically addrеssing the purpose of the “person in interest” phrase, the committee stated, “[t]he amendment fully protects the employer against abuses which might result from so-called ambulance chasing.”12
It is not a bill for the benefit of ambulance chasers. The language is carefully limited to make its provisions applicable with reference to the giving of information only to a person in interest. Section 1 of the Employers’ Liability Act designates persons who are entitled to recover under the act under certain circumstances. These include the employee, and his or her personal representative for the benefit of the surviving spouse, children, and next of kin. The committee takes the language “a person in interest” as meaning a person entitled under section 1 to maintain an action or to recover damages as a result of the injury or death.13
Without belaboring the point, I conclude by saying there is not a shred of evidence in the legislative history that Congress, or any member thereof, intended that employer railroad companies be considered “person[s] in interest.” In fact, all the evidence compels the inescapable conclusion that Congress never contemplated the problem before us and could not have intended the language to mean what the majority holds it does.
The majority states that “Congress knew how to use, and in the statute artfully did use, the word ‘employee’ when it meant employee.”14 This does not, of course, mean that Congress artfully used the phrase “person in interest.” The reason Congress did not merely substitute the word “employee” for the phrase was, as the majority recognizes, because
II.
Thus, I think it undeniable that the legislative history of
The majority‘s approach to interpreting
To be sure, the majority proceeds to cite authority to support the rules, more critical in this context, that hold that statutory language may often be “regarded as conclusive,” see supra majority opinion at note 13, and that a statute that is “plain and unambiguous on its face” will ordinarily be interpreted without reference to the legislative history. See supra majority opinion at note 16. Yet in each of these cases the courts also engaged in discussions or thorough analyses of legislative history either to interpret the relevant statute in the first instance,16 or to rebut an interpretive position, expressed in a dissent17 or by one of the parties,18 that was based on an equivocal legislative history. The majority has not cited a single case in which a court has refused to search the legislative history for the meaning of statutory language merely because it believed the language to be unambiguous.19 More than likely, this is due to the fact that the courts, taking cogni
Of course, as demonstrated by the abbreviated discussion in part I, above, the historical context that gave rise to
B.
The majority‘s approach, assuming its validity, compels us to ask whether the “person in interest” phrase, divorced from its historical context, is clear and unambiguous on its face. In the absence of guiding principles for this threshold inquiry, I can only state that I think the phrase less clear than the majority does. For instance, is it clear, without examining the purposes for its adoption,21 that
The “fundamental canon” that holds that, ordinarily, “words will be interpreted as taking their ordinary, common meaning,” Perrin v. United States, 444 U.S. at 42, 100 S.Ct. at 314, is also of little help here. In the context of this appeal, we are invited, and the majority has agreed, to hold that a corporation is a “person in interest.” Is it common for the word “person” to refer to a corporation? Would an ordinary “person-on-the-street” understand us to include corporations, associations or other purely legal entities when we say the word “person“?23 I think not.24 In the context of legal usage, perhaps.25 Yet placing the language in the statutory or legal context, as the majority clearly does, is, at least, a departure from the literal terms of the cited canon of construction; inquiring more deeply into the statutory
Moreover, when, as in this appeal, we have been presented in the briefs with an interpretation, based on legislative history, that is unrebutted and at least superficially persuasive and that is dispositive of the principal issue, an examination of the legislative history is even more justified. However, just as “there ... can be no ‘rule of law’ which forbids [the] use” of legislative history, United States v. American Trucking Associations, 310 U.S. 534, 543-44, 60 S.Ct. 1059, 1063-64, 84 L.Ed. 1345 (1940), it is a reasonable corollary that there can be no absolute rule compelling its use in certain situations. Thus, I do not intend here to articulate a new test or standard for determining when it is appropriate to use legislative history as an aid to interpretation. I merely opine that I am hard pressed to imagine a more appropriate case for its use than the present one.
In United States v. American Trucking Association, supra, cited and partially quoted by the majority, see supra majority opinion at note 14, Justice Reed discussed the contours of statutory interpretation by the courts, in the process referring to the responsibility and the danger inhering the task. He wrote:
When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no “rule of law” which forbids its use, however clear the words may appear on “superficial examination.” The interpretation of the meaning of statutes, as applied to justiciable controversies, is exclusively a judicial function. This duty requires one body of public servants, the judges, to construe the meaning of what another body, the legislators, has said. Obviously there is danger that the courts’ conclusion as to legislative purpose will be unconsciously influenced by the judges’ own views or by factors not considered by the enacting body. A lively appreciation of the danger is the best assurance of escape from its threat but hardly justifies an acceptance of a literal interpretation dogma which withholds from the courts available information for reaching a correct conclusion. Emphasis should be laid, too, upon the necessity for appraisal of the purposes as a whole of Congress in analyzing the meaning of clauses or sections of general acts. A few words of general connotation appearing in the text of statutes should not be given a wide meaning, contrary to a settled policy, “excepting as a different purpose is plainly shown.”
310 U.S. at 543-44, 60 S.Ct. at 1063-64 (footnotes omitted). To my mind, at least part of Justice Reed‘s warning has gone unheeded today.
The ultimate problem with the majority‘s approach is that it renders irrelevant a readily accessible, often useful and, in this case, highly persuasive tool of interpretation. The resulting analysis, at least here, is truncated and the result at odds with legislative intent. In all cases in which statutory construction is necessary, this will not be so. Often the legislative history will be confused or just as ambiguous as the language of the statute. See, e.g., TVA v. Hill, 437 U.S. at 173-90, 98 S.Ct. at 2291-2300; United States v. Oregon, 366 U.S. at 648, 81 S.Ct. at 1281. But the majority‘s approach forecloses us, not only from using the tool of legislative history, but from even determining in the first instance whether the tool is useful or not; and, as noted above, does so with sparse precedent to legitimate it.
The effect of refusing at the threshold to even glance at the legislative history has here had the effect of elevating inartful draftsmanship to the level of precedent without so much as even a cursory inquiry into whether or not the draftsmanship is indeed inartful. The approach adopted has prevented a clear and unambiguous legislative history from clarifying what is arguably ambiguous language. I cannot concur in what appears to be an abdication of our responsibility to follow the expressed will of Congress, particularly when it results in injustice to concerned parties.
Again, the concern thаt motivates the majority‘s opinion is eminently legitimate; indeed, I share it. Specifically, we are concerned with the possibility that railroad companies could use the internal rule against filing false reports as a pretext to punish employees for filing reports or to discourage their being filed at all.26 While I have concluded from the legislative history that this concern is not remedied by
I would therefore hold that since
CHRYSLER CORPORATION, Plaintiff-Appellee, v. TEXAS MOTOR VEHICLE COMMISSION, et al., Defendants-Appellants.
No. 84-1651.
United States Court of Appeals, Fifth Circuit.
March 28, 1985.
Rehearing and Rehearing En Banc Denied April 24, 1985.
Notes
Any contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, and whoever, by threat, intimidation, order, rule, contract, regulation, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information to a person in interest, or whoever discharges or otherwise disciplines or attempts to discipline any emрloyee for furnishing voluntarily such information to a person in interest, shall, upon conviction thereof, be punished by a fine of not more than $1,000 or imprisoned for not more than one year, or by both such fine and imprisonment, for each offense; Provided, That nothing herein contained shall be construed to void any contract, rule, or regulation with respect to any information contained in the files of the carrier, or other privileged or confidential reports.
Id.