Transam Trucking, Inc. v. Administrative Review Board

immaterial ex- as witness was dence was regarding his

tensively cross-examined agreement

criminal activities testimony witness’s

government, linchpin government’s

was not the

case). any “linchpin” If was in this there

case, Pantages damning and his Harmon, transactions with

bank account Any information concern- Ebyam.

and not informant status was there-

ing Ebyam’s

fore immaterial.

AFFIRMED. TRUCKING,

TRANSAM

INC., Petitioner, BOARD,

ADMINISTRATIVE REVIEW DEPARTMENT

UNITED STATES LABOR, Respondent

OF

Alphonse Maddin, Intervenor.

No. 15-9504 Appeals, Court of

United States Circuit.

Tenth August

Filed GORSUCH, MURPHY,

Before McHUGH, Judges. Circuit MURPHY, Judge. Circuit

I. Introduction Alphonse employed was as a Maddin truck Petitioner TransAm driver (“TransAm”). January 2009, In Trucking cargo transporting through Maddin was on his Illinois when the brakes trailer temperatures. Af- froze because of subzero reporting problem ter TransAm and waiting repair hours for a truck to several arrive, unhitched his truck Maddin from away, trailer leaving and drove trailer He was terminated for unattended. abandoning the trailer. judge

Both an administrative law (“ALJ”) Department Respondent, (“DOL”) of Labor Administrative Review (“ARB”), Board Maddin concluded was terminated in violation of the whistleblow- provisions Transportation er of the Surface (“STAA”). He was Assistance Act ordered backpay. reinstated TransAm filed a Petition for of the ARB’s Final Review Decision with this court. and Order Exer- cising jurisdiction pursuant to 49 U.S.C. 31105(d), deny petition we for re- view. Background

II. Factual by TransAm a employed Maddin was 2009, he January truck In was driv- driver. (Kendra Brad K. Thoenen D. Hanson a TransAm on ing tractor-trailer for 1-88 briefs), Bing- with him Seigfreid on the 11:00 approximately p.m., in Illinois. At ham, PC, Missouri, City, for Peti- Kansas pulled highway of the Maddin to the side tioner. find the because he was unable to Tran- Glabman, Appellate Scott Senior Attor- gas fuel station and his sAm-mandated (M. Smith, Labor; ney Patricia Solicitor of he gauge empty. attempt- was below When Rosenthal, Ann Associate Solicitor for Oc- pull the road ten minutes ed back onto Health; cupational Safety and R. Heather later, he the brakes on the discovered Appellate Phillips, Litigation, Counsel of the up frigid trailer had locked because brief), with him Department on the U.S. temperatures.

Labor, D.C., for Washington, Respondent. frozen Maddin brakes reported Fetter, Cohen, P.L.C., D. Miller and was advised p.m.

Robert TransAm at 11:17 Detroit, service a re- Michigan, for TransAm’s Road Assist Intervenor. to his After repairs would be sent location. pairperson brakes were truck, repair waiting completed, for the Maddin called While Maddin Cluck for in- auxiliary power unit structions to purchase discovered on where fuel. Dur- heater”) (“APU” conversation, was not working ing “bunk this Cluck threatened there in the cab of was no heat the write up for either a late load or truck. for missing stop his fuel earlier. During conversation, subsequent Cluck informed eventually asleep fell in the Maddin he being up was written for aban- but was at approximately truck awakened doning later, the trailer. Less than a week telephone a.m. when 1:18 he received call Maddin was for violating fired company cousin, Nelson. Gregory Accord- policy by his load abandoning while under Nelson, ing to speech Maddin’s dispatch. slurred and he sounded confused. When up, Maddin sat he realized his torso was termination, After his Maddin filed a numb and he could not feel his feet. He OSHA, complaint with an agency within called Road Assist and told the again dis- DOL, the asserting TransAm violated the his bunk was not patcher working. heater of provisions whistle-blower the STAA He also told the about dispatcher phys- his when it him. discharged After the com- when repair- ical condition and asked the plaint by OSHA, was dismissed person dispatcher would arrive. The told requested a hearing before DOL ALJ. 49 “hang Maddin to in there.” 31105(b)(2)(B). The ALJ issued a written interim and decision order on Oc- thirty About after minutes his second 26, 2012, ruling tober that Maddin Assist, to Road call Maddin became con- in terminated violation of the Spe- STAA. continuing cerned about to wait' in the cifically, the concluded ALJ Maddin en- freezing temperatures without heat. He in gaged protected activity when he re- truck, the from the pulled unhitched trailer ported the frozen brake issue to TransAm away, truck about the three feet and called and again when refused to obey he Mr. supervisor, Larry Cluck.1 Maddin told Cluck’s drive instruction to the truck while he Cluck couldn’t feel feet and was dragging the trailer. The ALJ further con- having breathing trouble because of the cluded protected activity Maddin’s was a repeatedly cold. Cluck told Maddin to turn contributing factor TransAm’s decision though the on APU even Maddin told to fire him because Maddin’s refusal to working. Cluck several times it was not dragging the truck while the trail- When he leaving Maddin told Cluck was “inextricably er was intertwined” with help, seek Cluck told Maddin not to TransAm’s to terminate him for decision trailer, him instructing leave the to either abandoning the trailer the side of the drag the trailer its frozen brakes or highway. provided The ALJ Maddin with until repairper- remain with the trailer the an opportunity present evidence of eco- son arrived. Maddin follow either did nomic damages. instead, but, instruction drove off in the The a final ALJ issued decision and leaving truck the trailer unattended. The 2013, order on repair January awarding truck than back- arrived less fifteen min- pay to Maddin in an amount calculated utes Maddin left. Maddin drove the discharge truck back to the and met with the date of his to the date trailer repairperson. his reinstatement. Included the award Larry prior hearing spelling 1. Cluck died before "Kluck.” We utilize set forth in spell the ALJ. the record hearing Documents in Mr. transcript the ALJ. of the before Cluck’s last both ''Cluck” name as 1210 per legal interpretation travel allowances which DOL’s of the STAA

were diem part of com- Congress explicitly ALJ concluded were Maddin’s has delegated because earnings interim were pensation. Maddin’s Secretary authority to the of Labor on the not deducted based ALJ’s provisions enforce the whistleblower of the were than offset earnings that those more adjudication, STAA formal 49 U.S.C. would expenses interim 31105(b), Secretary delegat- and the has not have incurred but his termination. authority ed that to the enforcement ALJ to take The also ordered TransAm ARB.2 Delegation Authority See negative all made steps reports remove Assignment of the Ad- Responsibility to any termi- entity about Maddin or.his Board, Reg. ministrative Review 67 Fed. nation. 64,272 (Oct. 64,272, 17,. 2002); United 218, 229-30, Corp., States Mead appealed ALJ’s decision L.Ed.2d S.Ct. ARB. ALJ’s The affirmed the decisions, (holding appropriate Chevron deference is concluding and final interim appears “statutory it from the cir- supported ap- substantial evidence all the when plicable findings. Congress expect Board also affirmed cumstances that would backpay. the amount of agency speak be able to with the of law ambiguity force when addresses III. Discussion Congress “pro- in the statute” as when n relatively for a formal vides administrative A. . Review Standard of U.S.A., Chevron, procedure”); Inc. v. Nat. This court reviews the final order Council, Inc., 837, Res. Defense out in of the under the standards set (1984) 843, 2778, 104 S.Ct. 81 L.Ed.2d 694 the Administrative Procedure Act ‘ (holding interpretation an agency’s of a (“APA”). 31105(d); § 49 U.S.C. 5 U.S.C. by statute administers is owed deference standards, § 706. Under those this court when is courts “the statute silent or am- sup will affirm the ARB’s if it is decision on -in biguous” question the issue and the evidence, by is ported substantial which a agency’s reading represents “permissible “such relevant evidence as a reasonable statute”). construction of the might adequate accept support mind Perales, a 402 conclusion.” Richardson v. B. The STAA Claim 389, 401, 1420, U.S. 91 S.Ct. 28 L.Ed.2d compláint provision The of the STAA omitted); (quotation 842 see also an prohibits discharging FERC, Phillips v. Petroleum Co. 786 F.2d employee employee because the “has filed (10th 1986) (“The 370, scope 373 Cir. or a complaint begun proceeding related 706 depends upon review under section ato violation of a commercial motor vehi- adju ... agency whether the action is an standard, safety or security regulation, cle dication or a formal in which rulemaking, 3U05(a)(l)(A)(I). 49 or order.” case standard of review is the substan upheld finding The ARB the ALJ’s ”). tial evidence standard.... The APA engaged protected activity un- highly standard review narrow and provision he Tran- Envtl., der this when notified agency. Compass deferential to the brakes, concluding sAm about the frozen Safety Inc. v. Re Occupational & Health (10th Comm’n, 1164, supported substantial view 663 F.3d 1167 2011). challenges given Cir. Deference is also to the evidence. TransAm the ARB’s argued precedent agency.” Efagene 2. TransAm has not that the ARB's within Holder, 2011). legal (10th conclusions are not entitled to Chevron 642 920 Cir. F.3d “binding deference because its decision is not truck, conclusion that “uncorrected vehicle de- was unable to obtain correction of fects, brakes, faulty safety such as violate the unsafe condition.

regulations reporting a defective vehi- ARB agreed with the ALJ’s squarely cle falls within the definition of finding that engaged protected activity protected under STAA.” TransAm activity provision under this when he un argues report Maddin’s of frozen brakes is hooked the trailer and “refused to a complaint type of the the STAA the truck under the conditions set Mr. protect seeks to because Maddin was sim- argues [CJluck.” TransAm that because ply communicating a concern about defec- Maddin drove the truck in being brakes, tive a condition that in and of itself structed “stay put,” actually he operated any does not constitute a violation of stat- vehicle and the ARB erred conclud regulation. unnecessary ute or It is to re- ing his conduct fell within the “refusal to ruling solve this issue because the ARB’s operate” provision of the STAA. Because provi- can be affirmed under an alternative reviewing we are interpretation DOL’s sion of upon by the STAA also relied administers, of a statute it begin by we ARB. asking “whether Congress directly has spoken precise to the question at issue.” That provision alternative is codi Chevron, at U.S. 104 S.Ct. 2778. 31105(a)(l)(B)(ii) fied 49 U.S.C. Here, the term “operate” is not defined in makes it an employer unlawful for to dis the statute. “If ... Congress has not di charge an employee oper who “refuses to rectly addressed the precise question at employee ate vehicle because ... has issue, the court simply impose does not apprehension inju a reasonable of serious statute, own construction on the as would ry to employee public or the because of necessary be in the absence of an adminis safety the vehicle’s security hazardous interpretation.” 843, 104 trative Id. at S.Ct. employee’s apprehen condition.” For an (footnote omitted). Instead, we exam reasonable, injury sion of serious to be the ine “whether the agency’s [interpretation] employee must show that a reasonable in permissible is based on a construction of dividual in employee’s the circumstances the statute.” Id. safety “would conclude that the hazardous security or condition establishes a real argument equates TransAm’s the term accident, danger injury, of im or serious statute, “operate,” as used in the 31105(a)(2). pairment § to health.” Id. An However, driving. TransAm has not direct- employee seeking protection under this any authority ed this court to for the prop- provision must “sought also show that he Congress osition that the intended refusal- from employer, the and [was] unable to to-operate provision of the STAA to be obtain, correction safety of the hazardous interpreted narrowly, so and has not ex- security condition.” Id. TransAm does plained how interpretation such narrow dispute not that Maddin had reasonable purposes furthers the of the STAA. The apprehension injury of serious if he either ARB the term interpreted “operate” stayed with dragged the trailer or the encompass only driving, not but other uses highway. trailer down the Neither does of a vehicle when it is within the control of dispute Thus, that the trailer’s frozen in- employee.3 the under the ARB’s Maddin, brakes were unsafe and terpretation, who had refusal-to-operate provi- waiting been more than three hours in sion could cover a situation in which an freezing in temperatures employee an unheated vehicle in the refuses to use his language particularly 3. The encompass actually operating used a vehicle”—is ARB— " operate’ may its statement that 'a refusal to vehicles,” dangers motor “to minimize even if cial employer his manner directed of commercial operators driv- the health of employee results that refusal Thus, vehicles,” by way example, of and “to ensure increased vehicle. motor ing the ov- partially who unloads an and with ... employee compliance an with traffic laws of safety trailer in direct contravention erweight motor vehicle and commercial pull- to continue employer’s his instruction standards.” 49 regulations health public overweight 31131(a). trailer on ing the § The STAA’s whistle- operate the vehi- roadways, has refused “en were enacted' to provisions blower even if the of the STAA purposes cle for noncompli of courage employee reporting trip after unload- employee completes safety regulations governing ance with Beveridge v. Waste ing the trailer. See Brock v. motor vehicles.” commercial Envtl., Inc., 97-137, No. Stream 252, 258, Inc., Express, Roadway 1997). (ARB 23, *1 Dec. WL (1987). 95 L.Ed.2d 239 107 S.Ct. moves a dis- Similarly, employee an who interpretation ARB’s busy of a trailer from the middle abled 31105(a)(l)(B)(ii) purpose of furthers the the shoulder of the road roadway to by prohibiting employer the STAA remain in being told employ discharging an insubordinate refused to roadway, has was motivated ee whose insubordination whistle- purposes of the STAA vehicle employee’s apprehen reasonable by the interpretation protection under the blower injury to himself or mem sion of serious 31105(a)(l)(B)(ii) by the adopted §of Thus, public. we defer to the bers of the . ARB. “oper interpretation that the term DOL’s 31105(a)(1)(B) alia, enacted, ate” as used inter The STAA was term “drive.”4 coextensive with the operation the safe of commer- “promote by TransAm to meaning we have been asked confusing, is clear matter but its somewhat step. second is to move to Chevron's review in context. when read request disregard TransAm’s Even if we using analyze the Chevron we this case application takes issue with our 4. The dissent analysis by the paradigm employ the used us, question deeming before of Chevron to dissent, still reach the same conclu- we would step foray two Chev- an "uninvited into it too,We, dictionary defini- found a sion. have Dissenting Op. We re- at 1216. ron land.” "operate” word and discovered tion of the invitation from TransAm in its ceived our Oper- functioning "control the of.” means to opening Appellant Br. at 13 n.5. Tran- brief. Pro, ate, http://www. Oxford Dictionaries matter, sAm, appellant in this relied on the oxforddictionaries.com/us/definition/ argue Chevron to the ARB’s construction (last July american_english/operate visited rejected. should be the STAA 2016). clearly encompasses ac- definition This moving further criticizes us for reason, The dissent driving. than For that tivities other analysis prong Chevron to the second of the driver is that a truck the dissent's conclusion concluding "operate” is not the term after he refuses to "operating” his truck when in the statute. The dissent believes defined in when he refuses to remain drive it but not by easily Congress’s can be determined intent awaiting repair, is curi- of it while control dictionary simply choosing defini- a favorite logical explanation that the only is ous. The quickly applying Congress the word and that tion of used the has concluded dissent ambiguous really the is not at all. when it "operate” conclude statute in the statute word However, defining lim- the term are comfortable in addition to meant "drive.” We more Congress unambigu- language "operate,” Congress iting did not review to the also our n dissenting judge regard actually stated ously express its intent with used. As legis- argument, job isn't to during "Our the term. See United States v. oral definition of Okla., present in that aren’t late and add new words 321 F.3d Seminole Nation of 2002). Thus, (10th only way the statute.” to resolve Cir. ARB’s Having truck, concluded the inter instruction and drove off in the leav- 31105(a)(l)(B)(ii) per § is a pretation Thus, ing the trailer behind. as the ARB statute, of the we missible construction concluded, although actually drove also conclude ARB’s Mad- it, the truck unhitching he refused to engaged STAA-protected activity in din operate his tractor-trailer in the manner when he unhitched the trailer and drove employer. instructed This conclusion supported by in the truck is off substantial supported by is substantial evidence. Here, evidence. Mr. instructed Mad- Cluck TransAm also raises two chal din to either drive his truck while dragging lenges to the ARB’s finding pro that the stay the trailer or with the trailer on the activity tected in which Maddin engaged roadway repairperson side of the until the was a contributing factor in his termi obey arrived. Maddin refused to either 1978.109(a) § nation. 29 C.F.R. (providing and, given by instruction Mr. Cluck in a complainant must demonstrate “a stead, unhooked the truck from the trailer preponderance of the pro evidence that off, leaving drove the trailer unattend activity tected was a contributing factor in very thing ed—the Mr. him Cluck ordered the adverse action alleged the com not to do. plaint”); see also As to Maddin’s to drag refusal the trail- 42121(b)(2)(B)(I) § (requiring a complain er, argues dragging TransAm ant prima to make a facie showing that his option” trailer was “ridiculous alternative protected activity contributing “was a fac and, thus, Maddin oper- could not refuse to tor personnel unfavorable action ate his vehicle under the conditions set alleged in complaint”); 49 U.S.C. impossible because it was 31105(b) (incorporating the burdens of argument unpersua- do so. TransAm’s 42121(b)). proof set out in 49 U.S.C. First, sive. both the the ARB ALJ and (1) protected Maddin’s activities included accepted Maddin’s uncontroverted testimo- refusing drag the tractor-trailer and ny drag that Mr. Cluck ordered him to refusing to remain with the Further, trailer. Ac trailer with the frozen brakes. TransAm, cording to Maddin’s TransAm has not directed this court refusal any drag evidence in the trailer did not demonstrating the record contribute to his dragging impossible. simply the trailer was termination It because “is not cred is true that Maddin testified he could not ible” to conclude he was terminated for they release the brakes because were failing “defy fro- physics.” the laws of Mad- testify zen. But Maddin did not that he din’s refusal to remain with his trailer did unable, seriously attempted, but was because, not contribute to his termination drag the trailer. argues, that conduct was not a and, thus, refusal to his vehicle

Because the refusal-to-operate provision protected activity. was not TransAm’s ar interpreted can be multiple to cover uses guments are duplicative arguments of the of a vehicle while it inis the control of an respect it made with to the issue of wheth employee, the ARB did not err in conclud- engaged er in protected activity. ing that unhitching Maddin’s act of arguments For the same reason those driving trailer and off the truck was a unpersuasive protected were as to the ac operate refusal to the tractor-trailer for issue, 31105(a)(l)(B)(ii). tivity they unpersuasive as to §of are purposes by protected the issue of whether Maddin’s operate was instructed Mr. Cluck to his rig by remaining activity contributed to TransAm’s decision the trailer until the repairperson disobeyed arrived. He that employment. terminate his 31105(b)(3)(A)(iii). order, In final that Maddin was termi-

Direct evidence Maddin was entitled to ARB concluded refusing his vehicle nated for with interest. backpay reinstatement and by employer his the conditions set under challenges three to the TransAm raises admission that Mad- consists of TransAm’s backpay award. abandoning the was terminated for din ARB concluded that “Mad- trailer.5 The ar challenge, In its first drag the trailer or refusal to either din’s backpay award should' not gues Maddin’s inextricably [were] with the trailer remain per-diem travel allowance of include action taken with the adverse intertwined The awarded this per week. ALJ $168.58 (termination abandoning him for na against concluding precise “the amount trailer).” from Thus, payments ture” of the was “unclear” the ARB concluded the the allowances Noting the record. for Maddin’s termi- explanation stated driving was paid were whenever Maddin necessarily implicates protected his nation appear for TransAm and did not from the finding is activities. The ARB’s causation by TransAm to be pay stubs submitted evidence, by indirect name- supported also ruled expenses, intended to offset the ALJ proximity of Mad- ly temporal the close they properly were included Maddin’s activity with termi- protected din’s upheld the ALJ’s earnings. lost shifting explanations given nation and the determination, concluding supported it was why for he intended to write by Mr. Cluck evidence. TransAm does not substantial dáy of the incident. We up Madden on n paid dispute that the allowances were difficulty concluding the ARB’s have no for TransAm but whenever Maddin drove supported is substan- causation “spe were it asserts the travel allowances tial evidence. Maddin for cifically designed reimburse naturally incur on expenses that he would Award Backpay C. The Tran days when he drove for TransAm.” clearly employ- states that an The STAA quickly rejected argument sAm’s can be the statute shall be or- er who violates contains no cita appellate because its brief in- “pay compensatory damages, any supports dered record evidence that tion TransAm di this assertion.6 Neither has cluding backpay with interest.” taxes, employment specifi Although TransAm has not TransAm accuses Maddin of vio- 5. regulations plan state lating cally type and Illinois what of reimbursement federal stated warning by failing the hazard law to turn on §§ here. See 26 C.F.R. 1.62- was issue warning signal placing devices flashers and 2(c)(3) (5) (providing that a business reim — trailer, TransAm has when he abandoned withholding plan exempt bursement that Maddin was terminated never asserted requirements only an "accountable if it is 49 U.S.C. reason. See only expenses plan” with a which covers (b)(2)(B)(ii) (requiring connection, (2) requires expenses to business convincing clear and evidence’ demonstrate substantiated, (3) requires employ be would have taken the same action employer any paid ee to return to the amount against complainant in the absence of his expenses); see also in excess of substantiated protected activity). 2006-56, (ruling 2006-2 C.B. 874 Rev. Rui. arrange expense that "where an allowance evidence rele- 6. TransAm was aware this process track mechanism or ment has no the ALJ noted that the record vant because routinely pays per paid diem allowances per no evidence that the diem al- contained per diem allowances in excess of the federal expenses. were intended to offset lowances requiring actual substantiation rates without per payments noted diem The ALJ also the. expenses repayment of the excess of all the subject withholding. TransAm ar- were not amount, the ar payments made under all payments gues this were not com- shows a rangement made under will be treated as per pensation. While it is true that some diem subject withholding plan”). payments and nonaccountable are not testimony could not be im- any evidence that Maddin’s court this rected payments documentary use the its own required peached with evi- expenses. his actual why any to offset such he received dence and evidence could ruling the ARB’s Accordingly, we conclude brought not be to the attention of the ALJ travel allowances ’were per the diem that during prior proceedings. the wages is in Maddin’s lost included properly reject that argument We also TransAm’s evidence. by substantial supported backpay Maddin was not entitled to 2010 to income Maddin earned from period for the entire between his interest backpay from his was not deducted reinstatement because of an firing and his finding ARB’s that on the award based delay resolving in the alleged excessive than the business income was less this matter before the DOL. TransAm’s asser- to earn it. Tran- expenses Maddin incurred wholly self-serving open- and its tions are finding, arguing it is challenges this sAm no au- ing appellate legal brief contains Specifically, by the evidence. supported not thority support position. in of its failed to argues that Maddin TransAm any evidence he incurred business produce IV. Conclusion completely that offset his income expenses petition TransAm’s for review is denied. period. relevant during the GORSUCH, appellate posi- Judge, Contrary dissenting. to TransAm’s Circuit tion, ARB referenced the evidence the A was stranded on the side of trucker tax records proffered IRS —his weather, road, night, late at in cold and financial statement —and personal and a trailer brakes were stuck. He called his the ALJ’s supported concluded it company help gave for and someone there post- had a net loss for that Maddin trailer options. drag him two He could objection TransAm’s period. termination carrying company’s goods to its desti- on the fact that Mad- to be based appears (an sarcastically illegal maybe and nation of his submit direct evidence din did not Or he could sit and wait option). offered relevant during the earnings expenses (a if legal unpleasant arrive help however, TransAm, sup- offers no period. of trucker chose None option). The that direct evi- port proposition for the Above, unhook the deciding instead to Here, required. necessary dence gas station. his truck to trailer and drive sub- the evidence Maddin 'ARB credited TransAm, fired employer, response, In explained has not and TransAm mitted abandoning disobeying him for orders is unreliable or why that evidence goods. its trailer and credibility. Although Tran- Maddin lacks Tran- fair to ask whether might It be provided with an argues it was sAm But was a wise or kind one. sAm’s decision evidence, challenge the opportunity to questions like job to answer it’s not our a Post-Trial Brief record shows it filed to decide whether only task is that. Our January on 2013. Opposition Backpay De- illegal one. The the decision was brief, challenged Mad- In that TransAm vio- says Labor that TransAm partment of damages speculative, din’s evidence of law, particular lated federal obviously position the ALJ and 31105(a)(1)(B). only for- But that statute complaint rejected. to TransAm’s As firing employees who employers bids Maddin, it it was unable to cross-examine a vehicle” out safe- “refuse[ ] authority proposi- for the legal offers no And, course, like nothing ty concerns. that it was entitled to cross-examina- tion trucker in this here. The why happened explain tion. Neither does 1216 FCC, refusing operate Corp. fired for to land. See Comsat 250 F.3d

case wasn’t Indeed, employer gave (5th him 931, 2001); vehicle. n.7 938 Cir. SEC v. cf. says it must: very option the statute 80, 94-95, Chenery Corp., 318 U.S. 63 concerns, safety TransAm once he voiced (1943). 454, 87 L.Ed. 626 S.Ct. everyone’s expressly admission— —and terms, too, Even taken on its own I find permitted him to sit and remain where he myself unpersuaded argument my help. The trucker was and wait for colleagues devise for their invocation of only statutorily fired after he declined the step They say Chevron two. the statute is (refuse protected option operate) to (like ambiguous because some of its terms operate instead to his vehicle in a chose “operate”) expressly are not defined thought employer manner he wise but his But, Maj. Op. respectfully, statute. at 1211. anyone simply did not. And there’s no law my colleagues any precedent do not cite pointed giving employees has us to for the notion that the absence of a statu right operate ways their vehicles in tory enough definition is to render a statu Maybe employers Depart- their forbid. tory ambiguous term I am aware law, maybe ment like some- would such —and fact, In none. there are countless cases day Congress will adorn our federal stat- unambiguous a statute after exam ute books with such a law. But it isn’t job yet. ining dictionary there And it isn’t our to write definition of its terms. Department See, one—or to allow the to write Salazar, 379, e.g., Carcieri v. 555 U.S. Congress’s place. one in 388-92, 1058, 129 S.Ct. 172 L.Ed.2d 791 (2009); States, Hackwell v. 491 United My colleagues suggest Depart- that the 2007). (10th 1229, 1233-37 F.3d Cir. permitted ment should be to read the stat- utory phrase operate” to en- “refuse[ ] here, just Doing it seems to me that compass opposite protect its exact perfectly plain plainly the statute is —and employees operate who their vehicles in capture just doesn’t the conduct as here — employers’ They defiance of their orders. suggests. The term “refuse” justify ground this unusual result on the positively, express means decline “[t]o statutory phrase ambiguous or show a determination not to do some- Department and so we owe the deference thing.” English Dictionary 8 The Oxford Chevron, U.S.A., step under two of Inc. v. (2d 1989). Meanwhile, “operate” 495 ed. Council, Inc., Natural Resources Defense working means cause or actuate the “[t]o 104 S.Ct. 81 L.Ed.2d (a etc.).” of; machine, work id. 848. (1984). But, respectfully, it seems to Putting together, employees this who voice me Chevron is a turn place curious safety may concerns about their vehicles support given Department that the never decline to cause those vehicles to work argued ambiguous, the statute is never reprisal. protec- without fear of And that contended that interpretation was due tion, significant, just give while does not deference, step Chevron two and never employees those vehicles license cause fact, only even cited In party Chevron. ways they happen to wish but work mention Chevron this case was Tran- Indeed, my an forbids. col- sAm, only and then in a footnote in its require leagues’ position would seem to brief only part argument and then of an than a few new words to addition of more ambiguous. the statute is not We view, employee the statute. In their normally arguments don’t make for liti- just he “re- (least protected should be when gants agencies), of all administrative operate fuses to a vehicle” but also when and I wholly see no reason to make a foray step uninvited into two of Chevron he “refuses to a vehicle in the products fact is that statutes are ty”? The employer directs manner particular compromise he the sort of compromise, in a manner of operates it instead and just aren’t words overcome the hurdles of bi- necessary Yet those to thinks safe.” only there; protects before us the law And it is our presentment. cameralism and vehicles, operate refuse to who employees the terms of that to enforce obligation telling employee an a boss Imagine period itself, in the law expressed as compromise comput- an office “operate” may he either springboard the law as a sort of not to use operate” or “refuse er as directed lurking all evils perceived to combat employee would serious computer. What Maybe Congress found it neighborhood. use an office com- as license to take that has a agree employee easier compose for work but puter not employ- response still in to his right to sit luck. American novel? Good great an unsafe vehicle er’s order to sure, colleagues invoke the my try agree To be on a code detail- rather than “health” and purposes employee statute’s oper- can employee when and how an ing — they the result “safety” suggest way a in a he thinks safe and ate vehicle —and all, with them. After is consistent reach not. but his does appropriate note, chose to employee here who they able Maybe Congress would not have been and drive employer’s instructions defy his at all. to the latter of code Or agree sort do so to thought he best didn’t his truck as too time maybe just problem it found the some other esoteric a novel or with write press- and other matters more consuming mind, safety he bore but because end just it didn’t think about ing. maybe Or safety employee sort of concerns. Just the case, it is problem at all. Whatever indicate, concerns, Congress my colleagues day to job enough and work for the our Maj. at 1211. protect. Op. intended not to Congress pass, law did apply the true, though, all this is supposing Even have might and enforce one it but imagine isn’t our plain simply statute is when the didn’t. legislative intentions. appeal

business respectfully I dissent. 244, 260, Gemsco, Walling, Inc. v. (“The 605, 89 L.Ed. 921

65 S.Ct. can- meaning and of statute

plain words by legislative history overcome

not be

which, processes of de- through strained ambiguous wholly events of

duction from may furnish dubious bases significance, America, UNITED STATES direction.”). it is a And every inference in Plaintiff-Appellee, mistake, too, to assume well-documented v. (or putative even pursues statute announced) absolute and purposes MARQUEZ, to their Defendant- Ernest Joe See, Hydro e.g., seemingly logical ends. Appellant.

Res., EPA, F.3d 1158 Inc. v. No. 14-2193 (10th 2010) (en banc); Barnhart Cir. 438, 460-62, Co., U.S. Sigmon Coal Appeals, Court of United States (2002). Es- 151 L.Ed.2d 908 S.Ct. Tenth Circuit. generic ephemeral pecially to ends 12, 2016 August Filed all, un- safety.” After what as “health sun, gen- at some level der the at least safe- to “health and

erality, doesn’t relate

Case Details

Case Name: Transam Trucking, Inc. v. Administrative Review Board

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 8, 2016

Citation: 833 F.3d 1206

Docket Number: 15-9504

Court Abbreviation: 10th Cir.