GRAND TRUNK WESTERN RAILROAD COMPANY, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Administrative Review Board, Respondent, Webster Williams, Jr., Intervenor.
No. 17-3083
United States Court of Appeals, Sixth Circuit.
Argued: October 11, 2017. Decided and Filed: November 20, 2017.
875 F.3d 821
Given the likelihood that Kamar would be subject to involuntary imprisonment at the hands of the Jordanian authorities, resulting in mental pain and suffering, the Board erred in concluding that Kamar failed to establish that it was more likely than not that she would be tortured upon removal to Jordan. We grant the petition with respect to the Board‘s reasoning under the Convention.
E. Motion to Remand
We need not discuss the Board‘s denial of Kamar‘s motion to remand in light of the previous holdings.
III. CONCLUSION
For the reasons explained above, we GRANT the petition for review and REMAND to the Board for further proceedings consistent with this opinion.
Before: KEITH, McKEAGUE, and STRANCH, Circuit Judges.
McKEAGUE, J., delivered the opinion of the court in which KEITH and STRANCH, JJ., joined. STRANCH, J. (pg. 831-32), delivered a separate concurring opinion.
OPINION
McKEAGUE, Circuit Judge.
Despite having had its position derailed by every federal court to date, the Department of Labor‘s Administrative Review Board steams ahead. The Board interprets a retaliation clause in the Federal Railroad Safety Act (FRSA)—located in a recent amendment regarding “Prompt medical attention,”
Traditional tools of statutory interpretation lead us to a different conclusion: subsection (c)(2), just like its preceding subsection (c)(1), applies only to on-duty injuries. Thus, we grant the petition and remand with instructions that the proceeding below be dismissed.
I
Webster Williams, Jr. has a lifelong history of anxiety and depression. This history pre-dates his employment with Grand Trunk Western Railroad Company (Grand Trunk), where Williams worked as a locomotive engineer from 1995 until his termination for excessive absences in 2012.
In 2006, Williams began seeing Dr. John Bernick for a variety of conditions, including hypertension, insomnia, anxiety, and depression. As a part of his treatment plan, Dr. Bernick prescribed Xanax for Williams to take as a “stop gap” measure when Williams felt he needed to take the medication for his anxiety and depression. But he did so with two additional instructions: first, he referred Williams to a psychiatrist for further treatment; second, he advised Williams that in addition to taking Xanax, he “shouldn‘t work” during an anxiety episode if he would not feel safe.
In December 2011, Williams missed eight days of work because of his anxiety and depression. Although Williams‘s absences comported with at least part of Dr. Bernick‘s treatment plan for his medical conditions, Grand Trunk deemed six of these missed work days to be “unexcused absences” and terminated Williams in January 2012 for excessive absenteeism.1
On March 1, 2012, Williams filed a complaint with the Occupational Safety and Health Administration (OSHA) for wrongful retaliation and termination. On February 6, 2013, OSHA dismissed the complaint because Williams‘s absences for a “non-work-related illness” did not constitute qualifying “protected activity.”
Williams appealed OSHA‘s dismissal to an administrative law judge (ALJ) on February 25, 2013. After an evidentiary hearing and a review of the parties’ briefs, on August 11, 2014, the ALJ held that Williams had engaged in protected activity because he was following the treatment plan of his physician and the protected activity was a factor in Grand Trunk‘s decision to terminate Williams‘s employment. Thus, the ALJ awarded damages and attorney‘s fees to Williams. The ALJ based his finding that Williams‘s treatment plan was protected—even though it was for an off-duty illness—on the Administrative Review Board‘s holding in Bala v. Port Authority Trans-Hudson Corp., No. 12-048, 2013 WL 5872050 (Admin. Rev. Bd. Sept. 27, 2013).2 Grand Trunk appealed the ALJ‘s decision to the Board on August 21, 2014.
II
“A petition for review of an order entered by the Board pursuant to the FRSA is governed by the Administrative Procedure Act.” Norfolk S. Ry. Co. v. Perez, 778 F.3d 507, 511 (6th Cir. 2015) (citing
Everyone agrees that the FRSA was amended in 2008 to provide railroad workers with additional protections for on-duty injuries. But does a retaliation provision in the FRSA—nested in a section providing for “Prompt medical attention,”
“We begin, as in any case of statutory interpretation, with the language of the statute.” CSX Transp., Inc. v. Ala. Dep‘t of Revenue, 562 U.S. 277, 283, 131 S.Ct. 1101, 179 L.Ed.2d 37 (2011) (citing Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010)). The relevant statutory section provides:
(c) Prompt medical attention.—
(1) Prohibition.—A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment. If transportation to a hospital is requested by an employee who is injured during the course of employment, the railroad shall promptly arrange to have the injured employee transported to the nearest hospital where the employee can receive safe and appropriate medical care.
(2) Discipline.—A railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician, except that a railroad carrier‘s refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this section if the refusal is pursuant to Federal Railroad Administration medical standards for fitness of duty or, if there are no pertinent Federal Railroad Administration standards, a carrier‘s medical standards for fitness for duty. For purposes of this paragraph, the term “discipline” means to bring charges against a person in a disciplinary proceeding, suspend, terminate, place on probation, or make note of reprimand on an employee‘s record.
Of course, “[i]f the statutory language is plain, we must enforce it according to its terms.” King v. Burwell, — U.S. —, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (citing Hardt, 560 U.S. at 251); see also Conn. Nat‘l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’ ” (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981))).
“[W]hen placed in context,” id., the plain meaning of subsection (c)(2), which prohibits “an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician,” proves elusive.3 Thus, we must rely upon “traditional tools of statutory interpretation.” Sierra Club v. EPA, 793 F.3d 656, 665 (6th Cir. 2015). The Board primarily cites to the so-called Russello structural canon; Grand Trunk relies upon other textual context and structure, the absurdity canon, and the legislative history. These tools provide a framework for our analysis.
A
The Board‘s argument depends heavily on one textual observation: the language under subsection (c)(1) includes a limitation—“A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment“—while subsection (c)(2) contains no such limitation.
The Board cites to Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) and its progeny, which explained that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Id. at 23, 104 S.Ct. 296; see, e.g., Hardt, 560 U.S. at 252; Allison Engine Co. v. U.S. ex rel. Sanders, 553 U.S. 662, 671, 128 S.Ct. 2123, 170 L.Ed.2d 1030 (2008); see also United States v. Detroit Med. Ctr., 833 F.3d 671, 678 (6th Cir. 2016); Moses v. Providence Hosp. & Med. Ctrs., Inc., 561 F.3d 573, 580 (6th Cir. 2009). While the Board‘s reliance on the Russello structural canon has some traction, its interpretation ultimately goes off the rails, effectively stranding the caboose from its engine. Russello does not provide a dispositive canon. Even at its strongest, Russello provides a single canon, a subset of a single tool of statutory interpretation, which may be displaced by other tools. See Henry Ford Health Sys. v. Dep‘t of Health and Human Servs., 654 F.3d 660, 666 (6th Cir. 2011) (Russello “creates a potential inference, not a necessary one.“).
Employing those tools, the Third Circuit unanimously rejected the Board‘s identical Russello argument: “The Russello presumption only applies when two provisions are sufficiently distinct that they do not—either explicitly or implicitly—incorporate language from the other provision.” PATH, 776 F.3d at 164 (citing Clay v. United States, 537 U.S. 522, 530, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003)). “Since the critical question here is whether subsection (c)(1) operates to cabin the scope of subsection (c)(2), Russello can only be meaningfully invoked after we resolve that inquiry. Consequently, it is of little help here.” Id. at 164. Every other federal court since the PATH decision has followed the
To be sure, PATH‘s citation to Clay is open to some criticism. After all, in Clay, the Supreme Court did not decline to rely on the Russello doctrine in determining the scope of the parallel provision; it instead invoked Russello to say that “an unqualified term ... calls for a reading surely no less broad than a pinpointed [term.]” Clay, 537 U.S. at 530. Nevertheless, “[s]tatutory context,” PATH, 776 F.3d at 165 (quoting Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 728 (6th Cir. 2013)), and structure explain why Russello does not control here.
The relevant section in this case,
Further, the title of subsection (c), “Prompt medical attention,” also supports a harmonious reading of subsections (c)(1) and (c)(2), one that ensures railroad employees receive such attention for on-the-job injuries and occupational illnesses and do not face discipline or retaliation for doing so.6 The Board does not argue a
In light of the statutory structure and context, subsections (c)(1) and (c)(2) should be read together to determine the scope of protected activity. The purpose of subsection (c)(1) is to ensure employees receive prompt medical attention if they are injured on the job; the antiretaliation provision, subsection (c)(2), effectuates that purpose by protecting medical treatment for work injuries. See PATH, 776 F.3d at 164 n.11 (citing Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)) (noting that in Burlington, the Supreme Court “was not confronted with an argument that the two sections actually referred to each other, as we are here“).7
The Third Circuit seemed wary of accepting the wide-reaching implications of relying only on the Russello canon under these circumstances, and so are we. “Holding otherwise, as the [Board] did, would seem to foreclose the possibility that a statute could reference another provision without expressly saying so. That, of course, is contrary to Supreme Court precedent.” PATH, 776 F.3d at 164 n.10 (citing United States v. Navajo Nation, 556 U.S. 287, 299, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009); Melkonyan v. Sullivan, 501 U.S. 89, 94, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991)). In short, subsections (c)(1) and (c)(2) are structurally and logically married, joined under a title—“Prompt medical attention“—that limits both of its subsections together to injuries sustained “during the course of employment.”
A closer examination of the statutory structure implicit in the Board‘s position only reinforces our belief that Congress did not intend to hide a far-reaching reading in a mousehole.
B
Grand Trunk‘s characterization that the Board‘s reading of the statute creates uncontrolled, unlimited sick time for all railroad employees—or “absurd” results—is overstated. After all, subsection (c)(2) includes a provision designed to prevent the proverbial train wreck:
(2) Discipline.—A railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician, except that a railroad carrier‘s refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this section if the refusal is pursuant to Federal Railroad Administration medical standards for fitness of duty or, if there are no pertinent Federal Railroad Administration standards, a carrier‘s medical standards for fitness for duty....
Nevertheless, even if the Board‘s reading would not create absurd results, it seems unlikely that Congress hid such an elephant in the
The Board agrees that the limiting language in subsection (c)(1)—“during the course of employment“—only applies to bar interference with medical or first aid treatment for injuries that arise from work, or injuries “sustain[ed] on duty.” Resp‘t Br. at 25; see id. at 23 (“[S]ection 20109(c)(1)‘s protection is, for obvious reasons, explicitly limited to circumstances involving such [on-duty] injuries ....“); see In the Matter of Anthony Santiago, No. 10-147, 2012 WL 3255136, at *7 (Admin. Rev. Bd. July 25, 2012) (“We hold that subsection 20109(c)(1) bars a railroad from denying, delaying, or interfering with an employee‘s medical treatment throughout the period of treatment and recovery from a work injury.“) (emphasis added).
That reading of subsection (c)(1) is difficult to square with the Board‘s reading of subsection (c)(2). Subsection (c)(2) first provides that a railroad carrier may not retaliate against “an employee for requesting medical or first aid treatment.”
(c) Prompt medical attention.—
(1) Prohibition.—A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment....
(2) Discipline.—A railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician, except that a railroad carrier‘s refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this section if the refusal is pursuant to [FRA] medical standards for fitness of duty or, if there are no pertinent [FRA] standards, a carrier‘s medical standards for fitness for duty....
C
While reliance on legislative history has become less prevalent over time, “substantive canons have not displaced legislative history.” Anita S. Krishnakumar, Reconsidering Substantive Canons, 84 U. Chi. L. Rev. 825 (2017) (noting “eight of the eleven justices who have served on the Roberts Court ... referenced legislative history more often than they referenced substantive canons in the opinions they authored“); see, e.g., Corley v. United States, 556 U.S. 303, 319–20, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009); see also Sierra Club, 793 F.3d at 665; cf. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (noting a “clearly expressed legislative intention contrary to [the plain] language” can lead to a different result). After all, “[i]n construing statutes, our primary goal is to effectuate legislative intent.” Estate of Gerson v. Comm‘r, 507 F.3d 435, 439 (6th Cir. 2007) (emphasis added).
The legislative history favors Grand Trunk‘s, and not the Board‘s, position. In 2008, Congress added several amendments to the FRSA‘s employee-protection provisions. These amendments included measures to “strengthen existing whistleblower protections for railroad employees ... [and] [p]rohibit railroad carriers from interfering with the medical treatment of injured workers.” H.R. Rep. No. 110-336, at 59 (2007).10 Relevant to this case, the latter amendment codified at
The remedial avenues under this statutory section reinforce the legislative intent. The retaliation claim in this case necessarily arose through OSHA‘s administrative processes. In response to “personal injuries and illnesses arising out of work situations,” Congress created OSHA primarily to “assure so far as possible every working man and woman in the Nation [enjoys] safe and healthful working conditions.”
In sum, the Board even concedes “that much of the legislative history discusses on-duty injuries,” and “it has been unable to point to any express evidence that the policy now advances was ever considered by anybody at any point in the legislative process.” PATH, 776 F.3d at 168.
As a final matter, Chevron deference is inapposite under these circumstances. “An agency‘s interpretation is not entitled to Chevron deference, for example, if the apparent statutory ambiguity can be resolved using ‘traditional tools of statutory construction.’ ” Mid-Am. Care Found. v. N.L.R.B., 148 F.3d 638, 642 (6th Cir. 1998) (quoting Cardoza-Fonseca, 480 U.S. at 446); see, e.g., Owensboro Health, Inc. v. U.S. Dep‘t of Health and Human Servs., 832 F.3d 615, 620 (6th Cir. 2016) (rejecting Chevron deference after finding “the entire statutory phrase” in context unambiguous). And the Board fares no better in the end by citing to Skidmore “deference” because we “find the [Department‘s] interpretation ... unpersuasive.” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 161, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012) (employing “traditional tools of interpretation” to reject the Department of Labor‘s interpretation).
In short, because traditional tools resolve any “apparent statutory ambiguity” in Grand Trunk‘s favor, Chevron and Skidmore do not resuscitate the Board‘s position.
III
In sum, we join every other federal court that has interpreted
JANE B. STRANCH, Circuit Judge, concurring.
CONCURRENCE
I write separately to comment on the Board‘s adherence to the same position it advanced before the Third Circuit in PATH. There, the Board also argued (albeit unsuccessfully) that