               Case: 11-14850        Date Filed: 03/11/2013      Page: 1 of 21

                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 11-14850
                               ________________________

                                      ARB No. 10-001

KOCH FOODS, INC.,

                                                                                     Petitioner,

                                             versus

SECRETARY, UNITED STATES DEPARTMENT OF LABOR,
and TIMOTHY BAILEY,

                                                                                 Respondents.
                               ________________________

                         Petition for Review of a Decision of the
                               Administrative Review Board
                               ________________________

                                      (March 11, 2013)

Before MARCUS and PRYOR, Circuit Judges, and FRIEDMAN, * District Judge.

FRIEDMAN, District Judge:

       Petitioner Koch Foods, Inc. appeals the final decision and order issued by

the Administrative Review Board (ARB) of the Department of Labor (DOL), in

*
  Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting
by designation.
              Case: 11-14850     Date Filed: 03/11/2013    Page: 2 of 21

which the ARB determined that Koch Foods had violated the whistleblower

protection provision of the Surface Transportation Assistance Act (STAA) by

firing its employee, respondent Timothy Bailey.

      Congress passed the STAA’s whistleblower provision in 1983 to “protect[]

employees in the commercial motor transportation industry from being discharged

in retaliation for refusing to operate a motor vehicle that does not comply with

applicable state and federal safety regulations or for filing complaints alleging such

noncompliance.” Brock v. Roadway Express, 481 U.S. 252, 255 (1987). The

current version of the statute protects from retaliation employees who engage in

certain protected activities, one of which is refusing to operate a motor vehicle

“because . . . the operation violates a regulation, standard, or order of the United

States related to commercial motor vehicle safety, health, or security.” 49 U.S.C.

§ 31105(a)(1)(B)(i) (Supp. V 2012). This appeal presents a question of statutory

interpretation: Is protection under Section 31105(a)(1)(B)(i) triggered only when

operation of the motor vehicle would result in an actual violation of law? Or may

the ARB interpret the provision to cover circumstances in which a driver

reasonably but incorrectly believes that operation would result in a legal violation?

      Koch Foods argues that Section 31105(a)(1)(B)(i) unambiguously protects

an employee’s refusal to drive only if driving would have resulted in an actual

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violation of law. Respondent, the Secretary of Labor, contends that the statute is

ambiguous, and that the ARB’s interpretation of this clause as incorporating a

subjective belief element is reasonable and entitled to Chevron deference. See

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)

      After reviewing the plain language of the provision and its statutory context,

as well as the relevant statutory history, we hold that the phrase “refuses to operate

a vehicle because . . . the operation violates a regulation, standard, or order,” as

used in 49 U.S.C. § 31105(a)(1)(B)(i), refers only to circumstances in which

operation would result in an actual violation of law. Accordingly, we vacate the

ARB’s decision and remand so that the ARB may evaluate whether the operation

of Mr. Bailey’s assigned vehicle would have resulted in an actual violation of a

regulation, standard or order related to commercial motor vehicle safety, health, or

security.

                                  I. BACKGROUND

      Timothy Bailey worked as a driver transporting chickens from farms to a

Tyson Foods plant for four years until May 2007, when Koch Foods purchased the

plant where Mr. Bailey worked and became his new employer. Koch Foods

introduced to the company fleet a new type of trailer, which was longer and could

carry more chicken cages. Soon after, Bailey noticed that some of the new trailers

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were arriving at Koch Foods’ processing plant overweight – that is, above the

80,000 pound weight limit mandated by federal and state law.

      On his July 25, 2007 drive, Mr. Bailey observed that his tractor-trailer, at

approximately 84,000 pounds, was overweight, but he did not inform his

supervisor of the problem. The next day, when Bailey arrived at the farm and

found the same type of trailer waiting for him, he perceived it as overweight and

refused to drive it back to the plant. Another driver pulled the trailer assigned to

Bailey, who then waited about half an hour while the crew loaded a different type

of trailer, which Bailey pulled back to the plant. Although Bailey could have

called his boss from the farm, he did not do so that day.

      Early the next morning, Mr. Bailey notified his supervisor, Tim Graul, of the

event. Bailey was suspended for three days; upon returning to work after his

suspension, he was notified that he was fired for refusing a reasonable assignment

and causing a slowdown in production. Bailey was unemployed from August until

December 2007, when he took a job as a dispatcher at Tyson Foods.

      Mr. Bailey filed a complaint with the Occupational Safety and Health

Administration (OSHA), arguing that he was fired for refusing to drive a vehicle

he believed was overweight in violation of state and federal law. Bailey claimed

that his termination violated the whistleblower protections of the STAA, and

OSHA determined that Bailey’s complaint had merit. At an administrative hearing


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on the merits, the administrative law judge (ALJ) heard testimony from Bailey that

he had seen overweight trailers on the scales in the scale house and had made a few

runs with overweight trailers. The ALJ admitted into the record weight tickets

dated July 16, 2007 and July 25, 2007 for tractor-trailers weighing over the 80,000

pound weight limit.

      The ALJ also heard testimony from Bailey’s supervisor, Tim Graul, that the

farm staff had been instructed to cease over-packing chickens into trailers, and that

the supervisor who had overseen the packing of chickens on July 16, 2007 had

been removed from his supervisory position. The safety manager for Koch Foods,

Jon Burdick, also testified that the issue of overweight tractor-trailers had been

addressed. In addition, Mr. Graul testified that he had seen the weight ticket for

the tractor-trailer that Bailey refused to drive and that the trailer, in fact, was not

overweight. The weight ticket was not admitted into the record.

      The ALJ found that Mr. Bailey’s belief that the vehicle was unlawfully

overweight was objectively reasonable. The ALJ made no formal findings as to

whether the vehicle Bailey refused to operate actually was overweight, concluding

that Bailey’s reasonable belief was sufficient to render Bailey’s refusal a protected

activity under the STAA. The ALJ issued a recommended decision and order in

favor of Mr. Bailey.




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      The ARB affirmed the ALJ’s decision. In doing so, the ARB undertook a

detailed examination of the statute. It acknowledged that its prior decisions

“appear[ed] to require that the employee’s refusal to haul be based on an ‘actual’

violation of a safety regulation.” Nevertheless, the ARB concluded that the statute

was ambiguous as to whether the operation of a vehicle by an employee actually

had to violate the law for that refusal to be protected.

      The ARB then stated that, in light of the history and purpose of the statute,

“the protection afforded under Section 31105(a)(1)(B)(i) also includes refusals

where the operation of a vehicle would actually violate safety laws under the

employee’s reasonable belief of the facts at the time he refuses to operate a vehicle,

and that the reasonableness of the refusal must be subjectively and objectively

determined.” The ARB thus upheld the ALJ’s conclusion that an employee was

not required to show that operation of the vehicle actually would have violated a

safety law.

      The ARB also affirmed the ALJ’s award to Mr. Bailey of $944.68 per week

during the time that he was suspended or unemployed, $339.24 per week during

the time that he was employed but earning a reduced wage, and $8000 in

compensatory damages.

      Koch Foods appeals this decision on two grounds. First, it argues that the

ARB has misread the statute and imposed a “reasonable belief” standard where


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none exists. Koch Foods contends that Mr. Bailey’s refusal to drive cannot be a

protected activity unless the record shows that operation of the vehicle would have

resulted in an actual violation of law. Second, Koch Foods asserts that the award

of damages is not supported by substantial evidence.

                             II. STANDARD OF REVIEW

      In reviewing appeals arising from the STAA’s whistleblower provision, we

conform to the standard of review set forth in the Administrative Procedure Act, 5

U.S.C. §701 et seq. 49 U.S.C. § 31105(d). “The Secretary’s interpretation of the

[Surface Transportation Assistance] Act will be deemed correct ‘if it reflects a

plausible construction of the plain language of the statute and does not otherwise

conflict with Congress’ expressed intent.’” Trans Fleet Enters., Inc. v. Boone, 987

F.2d 1000, 1004 (4th Cir. 1993) (quoting Rust v. Sullivan, 500 U.S. 173, 184

(1991)); see also Fields v. U.S. Dep’t of Labor Admin. Review Bd., 173 F.3d 811,

813 (11th Cir. 1999) (“Appropriate deference must be given to statutory

interpretation by the ARB.”). But the court “appl[ies] the statutory language as

written when it is unambiguous.” Josendis v. Wall to Wall Residence Repairs, Inc.,

662 F.3d 1292, 1299 (11th Cir. 2011) (citing Chevron, 467 U.S. at 842-43).

      When determining whether to defer to an agency’s interpretation of a statute

it implements, the court follows the established Chevron framework. “In the first

step . . . we apply the traditional tools of statutory construction to ascertain whether


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Congress had a specific intent on the precise question before us.” Friends of

Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1222-23 (11th Cir. 2009).

“If Congress did, then the statute is not ambiguous and Chevron has no role to

play.” Id. at 1223. The court reaches Chevron step two only if the statute “is silent

or ambiguous with respect to the specific issue” being interpreted by the agency.

Nat’l Ass’n of State Util. Consumer Advocates v. F.C.C., 457 F.3d 1238, 1253

(11th Cir. 2006) (citing Chevron, 467 U.S. at 843); see also Sierra Club v. Johnson,

541 F.3d 1257, 1264-65 (11th Cir. 2008). Where the court finds that the statute is

clear, as it does here, no deference is accorded to the agency’s interpretation.

                                III.   DISCUSSION

                                          A.

      “We begin our construction of [Section 31105(a)(1)(B)(i)] where courts

should always begin the process of legislative interpretation, and where they often

should end it as well, which is with the words of the statutory provision.”

DIRECTV, Inc. v. Brown, 371 F.3d 814, 817 (11th Cir. 2004) (quoting Harris v.

Garner, 216 F.3d 970, 972 (11th Cir. 2000) (en banc)). Where the statute does not

expressly define a term, “we look to the common usage of words for their

meaning.” Jackson v. State Bd. of Pardons and Paroles, 331 F.3d 790, 795 (11th

Cir. 2003) (quoting CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222




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(11th Cir. 2001)). Courts often look to the dictionary definitions of terms to

determine their common usage. Id.

      The relevant portion of the statute, as amended in 2007, provides:

      (1) A person may not discharge an employee, or discipline or
      discriminate against an employee regarding pay, terms, or privileges
      of employment, because –

             (A)   (i) the employee, or another person at the
                   employee's request, has filed a complaint or begun
                   a proceeding related to a violation of a commercial
                   motor vehicle safety or security regulation,
                   standard, or order, or has testified or will testify in
                   such a proceeding; or

                   (ii) the person perceives that the employee has
                   filed or is about to file a complaint or has begun or
                   is about to begin a proceeding related to a violation
                   of a commercial motor vehicle safety or security
                   regulation, standard, or order;

             (B)   the employee refuses to operate a vehicle because –

                   (i) the operation violates a regulation, standard, or
                   order of the United States related to commercial
                   motor vehicle safety, health, or security; or

                   (ii) 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;

                                          * * *

      (2) Under paragraph (1)(B)(ii) of this subsection, an employee's
      apprehension of serious injury is reasonable only if a reasonable
      individual in the circumstances then confronting the employee would
      conclude that the hazardous safety or security condition establishes a

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      real danger of accident, injury, or serious impairment to health. To
      qualify for protection, the employee must have sought from the
      employer, and been unable to obtain, correction of the hazardous
      safety or security condition.

49 U.S.C. § 31105(a) (Supp. V 2012).

      The parties dispute the meaning of that portion of the statute that prohibits

an employer from disciplining or discriminating against an employee “because . . .

the employee refuses to operate a vehicle because . . . the operation violates a

regulation, standard, or order of the United States related to commercial motor

vehicle safety, health, or security[.]” 49 U.S.C. § 31105(a)(1)(B) (emphasis

added).

      In drafting this subparagraph, Congress employed the phrase “because . . .

the operation violates” unadorned by any reference to the employee’s belief. A

plain reading of the text, therefore, suggests that an actual violation of a regulation,

standard, or order must occur as a result of the operation of the vehicle. The

Secretary argues, however, that the word “because” signifies that the employee’s

subjective understanding is sufficient to trigger protection under this provision.

This interpretation reads too much into the term “because”. Webster’s Dictionary

defines “because” as “for the reason that,” “the fact that,” and “on account of

being.” Merriam-Webster’s Third New International Dictionary Unabridged,

http://mwu.eb.com/mwu (Accessed February 28, 2013). The word “because”

suggests a causal connection between the employee’s refusal and the violation, but,

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by definition, it does not mean that the violation need only be subjectively

perceived by the employee. While a subjective understanding or perception of a

violation may be necessary, it is not sufficient in itself.

      The ARB’s interpretation is also inconsistent with the structure of the

statute. See Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010) (“[W]e do

not look at one word or term in isolation but rather look to the entire statute and its

context.”). Section 31105(a)(1)(B) sets forth two protected categories of refusals

to drive – “commonly referred to” by the ARB itself as the “actual violation” and

the “reasonable apprehension” categories. Shields v. James E. Owen Trucking,

Inc., ARB Case No. 08-021, 2009 WL 4324727, at *3 (Dep’t of Labor Nov. 30,

2009); Pollock v. Cont’l Express, ARB Case Nos. 07-073, 08-051, at *8 (Dep’t of

Labor Apr. 7, 2010); Wrobel v. Roadway Express, Inc., ARB Case No. 01-091,

2003 WL 21788036, at *4, n.4 (Dep’t of Labor July 31, 2003).

      In its prior decisions, the ARB has described Section 31105(a)(1)(B)(i) as

the “actual violation” category, in which the employee’s refusal is protected “only

if the record establishes that the employee’s driving would have violated a motor

vehicle regulation, standard, or order.” Shields, 2009 WL 4324727, at *3; see also

Cummings v. USA Truck, Inc., ARB Case No. 04-043, 2005 WL 1028217, at *3

(Dep’t of Labor Apr. 26, 2005) (“To invoke protection under [Section

31105(a)(1)(B)(i)], a complainant must allege and ultimately prove that an actual


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violation would have occurred.”). By contrast, under Section 31105(a)(1)(B)(ii),

the “reasonable apprehension” category, the ARB has said that the refusal is

protected if the employee reasonably believed “that operation of the motor vehicle

would pose a risk of serious injury to the employee or the public.” Shields, 2009

WL 4324727, at *3.

      The statute directs the agency and the courts to implement the “reasonable

apprehension” clause in paragraph (1)(B)(ii) under an objective reasonableness

test, where the adjudicator determines whether “a reasonable individual in the

circumstances then confronting the employee” – not the specific complainant –

“would conclude that the hazardous safety or security condition establishes a real

danger of accident, injury, or serious impairment to health.” 49 U.S.C.

§ 31105(a)(2). In addition, to qualify for protection under the “reasonable

apprehension” category, the employee must have “sought from the employer, and

been unable to obtain, correction of the hazardous safety or security condition.”

Id.

      Notably absent from 49 U.S.C. § 31105(a)(2)’s explanation of

“reasonableness” is any reference to Section 31105(a)(1)(B)(i). Had Congress

intended to condition protection for refusal to drive under that clause merely on a

reasonable belief that there would be a violation of law, rather than on an actual

violation, Congress presumably would have expressed this standard explicitly. See


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Griffith v. United States (In re Griffith), 206 F.3d 1389, 1394 (11th Cir. 2000)

(internal quotation omitted) (“[W]here Congress knows how to say something but

chooses not to, its silence is controlling.”).

      The Secretary nevertheless argues that the term “violates” in the statute does

not always refer to a genuine, actual violation, because that term is construed

differently in the preceding “Complaint” subparagraph. She points out that

Section 31105(a)(1)(A) provides that an employer cannot take discriminatory or

disciplinary action against an employee where the employee “has filed a complaint

or begun a proceeding related to a violation” of a safety or security regulation,

standard, or order, or “has testified or will testify in such a proceeding.” 49 U.S.C.

§ 31105(a)(1)(A)(i); see also 49 U.S.C. § 31105(a)(1)(A)(ii) (similar protection for

employees perceived to have initiated a complaint).

      All parties agree that “violation” as used in the Complaint subparagraph

refers to an act reasonably perceived to be a violation. See, e.g., Calhoun v. U.S.

Dep’t of Labor, 576 F.3d 201, 212 (4th Cir. 2009) (internal quotation omitted)

(“To qualify for protection, a complaint must be based on a ‘reasonable belief that

the company was engaging in a violation of a motor vehicle safety regulation’”);

Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992); Guay v.

Burford’s Tree Surgeon’s Inc., ARB Case No. 06-131, 2008 WL 2624771, at *4

(June 30, 2008). But it does not follow that the “reasonable belief” or “reasonable


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perception” standard in the Complaint subparagraph should also apply to Section

31105(a)(1)(B)(i).

       Not only is the surrounding language dissimilar – “related to a violation” is

different from “operation violates” – but the purposes of the two provisions are

distinct. Subparagraph (A) protects employees who file complaints about

violations that they observe in their work, whereas subparagraph (B) protects

employees who refuse to do tasks that would otherwise fall within the scope of

their employment. It is plausible that Congress would elect to provide broader

protections for employees who complain about perceived but nonexistent safety

violations – as it has, for example, in Title VII and other statutes protecting

employees from discrimination in the workplace – and narrower protections for

employees whose refusals to drive may significantly impede work operations. 1

Indeed, as the Second Circuit has noted, “protecting trucking firms from

unjustified work refusals certainly was clearly of concern to Congress in passing

the STAA.” Yellow Freight Sys., Inc. v. Reich, 38 F.3d 76, 81 (2d Cir. 1994).



1
   The Secretary draws analogies between the STAA and whistleblower provisions in other
statutes, which protect employees who file complaints or initiate proceedings based on violations
or alleged violations. See, e.g., 49 U.S.C. § 42121 (protecting employees who provide
information or participate in proceedings related to violations of the Aviation and Investment
Reform Act); 15 U.S.C. § 2622 (protecting employees who participate in proceedings brought
under the Toxic Substances Control Act); 42 U.S.C. § 7622 (protecting employees who
participate in proceedings related to violations of the Clean Air Act). These statutes, however,
like 49 U.S.C. § 31105(a)(1)(A), are triggered when an employee complains about a perceived
violation – not when the employee refuses to perform work duties.

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                                         B.

      The statutory history of the whistleblower provision further bolsters Koch

Foods’ interpretation. When it was enacted in 1983, the whistleblower provision

provided, in relevant part:

      No person shall discharge, discipline, or in any manner discriminate
      against an employee . . . for refusing to operate a vehicle [1] when
      such operation constitutes a violation of any Federal rules,
      regulations, standards, or orders applicable to commercial motor
      vehicle safety or health, or [2] because of the employee's reasonable
      apprehension of serious injury to himself or the public due to the
      unsafe condition of such equipment. The unsafe conditions causing
      the employee's apprehension of injury must be of such nature that a
      reasonable person, under the circumstances then confronting the
      employee, would conclude that there is a bona fide danger of an
      accident, injury, or serious impairment of health, resulting from the
      unsafe condition. In order to qualify for protection under this
      subsection, the employee must have sought from his employer, and
      have been unable to obtain, correction of the unsafe condition.

49 U.S.C. § 2305(b) (1988) (emphasis added).

      The ARB interpreted the first sentence in 49 U.S.C. § 2305(b) as permitting

refusals to drive either (1) “when” such operation violated or would violate a

federal safety law, or (2) “because of” the employee’s reasonable apprehension

that such operation would be unsafe. See Duff Truck Line, Inc. v. Brock, 848 F.2d

189, 1988 WL 41972, at *2 (6th Cir. 1988) (unpublished table disposition)

(upholding Secretary’s interpretation that refusal had to meet either condition, not

both conditions, for protection). For refusal to be protected under the “when”

clause, a complainant had to show a genuine violation. Yellow Freight Sys., Inc.

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v. Reich, 38 F.3d at 82 (protection under the “when” clause is awarded only “when

an actual safety defect is found”); Brame v. Consol. Freightways, 90-STA-20,

1992 WL 752678, at *1 (Dep’t of Labor June 17, 1992) (Good faith belief is

“insufficient to establish a violation . . . [T]o invoke protection under the first

clause of Section 2305(b), a complainant must prove that his assessment of the

condition is correct.”); Robinson v. Duff Truck Line, Inc., 86-STA-3, 1987 WL

383080, at *4-5 (Dep’t of Labor Mar. 6, 1987); but see Yellow Freight System,

Inc. v. Martin, 983 F.2d 1195 (2d Cir. 1993) (upholding protection for employee

who was mistaken about safety violation but noting that an actual violation

generally is required). Although these decisions did not expressly examine

whether the “when” clause was unclear, the Secretary concedes that the “when”

clause unambiguously applied only when operation actually would have violated a

safety law.

      In 1994, Congress amended the statute as part of an overall revision of

federal transportation laws. See Revision of Title 49, United States Code

Annotated, “Transportation,” Pub. L. No. 103-272, 108 Stat. 745 (1994). As

relevant here, the revised statutory language provided:

      (1) A person may not discharge an employee, or discipline or
      discriminate against an employee regarding pay, terms, or privileges
      of employment, because—

              (A)   the employee . . . has filed a complaint or begun a
                    proceeding related to a violation of a commercial

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                       motor vehicle safety regulation, standard, or order,
                       or has testified or will testify in such a proceeding;
                       or

               (B)     the employee refuses to operate a vehicle
                       because—

                       (i) the operation violates a regulation,
                       standard, or order of the United States
                       related to commercial motor vehicle safety
                       or health; or

                       (ii) the employee has a reasonable
                       apprehension of serious injury to the
                       employee or the public because of the
                       vehicle's unsafe condition.

                                              * * *

       (2) Under paragraph (1)(B)(ii) of this subsection, an employee's
       apprehension of serious injury is reasonable only if a reasonable
       individual in the circumstances then confronting the employee would
       conclude that the unsafe condition establishes a real danger of
       accident, injury, or serious impairment to health. . . .

Id. at 990; 49 U.S.C. § 31105 (1994) (emphasis added).2

       During the 1994 revision, the statutory phrase “when such operation

constitutes a violation” was replaced with “because . . . the operation violates a

regulation, standard, or order.” (emphasis added) The ARB’s position is that the

1994 amendment rendered the provision’s language unclear. The Secretary argues

2
  The statute was amended in 2007 to incorporate certain recommendations by the 9/11
Commission. The 2007 amendments replaced the phrase “unsafe condition” with “hazardous
safety or security condition”, and created protections for individuals retaliated against because of
the employer’s belief that the employee had filed a complaint. 49 U.S.C. § 31105 (2008); Pub. L.
110-53, Title XV, § 1536 (Aug. 3, 2007).

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that the use of the word “because” in place of the word “when” changed the

emphasis to the reason for the employee’s refusal to drive, rather than the timing of

an actual violation – as the Secretary puts it, Congress “eliminated the temporal

element.” In the Secretary’s view, use of the word “because” signifies that the

employee’s subjective understanding is sufficient to trigger protection under the

statute. Although conceding that the original statute unambiguously required an

actual violation, the Secretary argues that the amendment somehow reflects a

congressional intention to change this requirement, or at least renders the statute

unclear.

      This argument fails. As discussed above, we do not read the term “because”

to indicate that the employee’s subjective belief is sufficient to trigger protection

under the Act. Nor did Congress intend such a result, as evidenced by its use of

the word “because” elsewhere in Section 31105. The current version of Section

31105(a)(1)(A), the “Complaint” subparagraph, prohibits an employer from

retaliating against an employee “because” (i) the employee has filed a complaint or

participated in a proceeding or (ii) the employer perceives that the employee has

filed or will file a complaint, or has participated or will participate in a proceeding.

49 U.S.C. § 31105(a)(1)(A). If the word “because” signifies that only the

employer’s subjective belief is relevant, then subparagraph (A)(ii)’s protections for

an employee whom the employer erroneously believes to have filed a complaint


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would be redundant. And directly relevant here, if the word “because” sufficed to

communicate a subjective belief standard, it would have been unnecessary to

include the “reasonable apprehension” language in Section 31105(a)(1)(B)(ii). See

49 U.S.C. § 31105(a)(1)(B)(ii) (protecting an employee who “refuses to operate a

vehicle because . . . the employee has a reasonable apprehension ”). “[C]ourts

should disfavor interpretations of statutes that render language superfluous.”

Griffith, 206 F.3d at 1393 (citing Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253

(1992)).

       Moreover, the 1994 Consolidation Act expressly states that no substantive

change is intended by the revisions to the language. Section 1(a) of that Act

provides that “[c]ertain general and permanent laws of the United States, related to

transportation, are revised, codified, and enacted by subsections (c)–(e) of this

section without substantive change as subtitles II, III, and V–X of title 49, United

States Code, ‘Transportation.’” Revision of Title 49, United States Code

Annotated, “Transportation,” 108 Stat. at 745 (emphasis added).3 The title of the

Act similarly provides that it is intended “to codify, and enact without substantive

change” existing provisions of title 49. Id. at 745; see Fla. Dep’t of Revenue v.

Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008) (internal quotation omitted)

(observing that although titles and section headings “cannot substitute for the

3
  The revisions to Section 31105, which fall within subtitle VI of title 49, are located in
subsection (e) of the 1994 Act.

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operative text of the statute,” they “are tools available for the resolution of a doubt

about the meaning of a statute”). The House and Senate Reports accompanying

those amendments repeat that the revisions were not intended to be substantive.

See H.R. Rep. No. 103-180, at 5 (1994), reprinted in 1994 U.S.C.C.A.N. 818, 822

(“As in other codification bills enacting titles of the United States Code into

positive law, this bill makes no substantive change in the law. . . . In a codification

law . . . the law is intended to remain substantively unchanged.”); S. Rep. No.

103-265, at 5 (1994) (same).

      These statements align with the principle that, while changes in statutory

language often indicate legislative intent to change a statute’s meaning, such an

inference is inapplicable to consolidations and recodifications of laws. As the

Supreme Court has observed, “it will not be inferred that Congress, in revising and

consolidating the laws, intended to change their effect unless such intention is

clearly expressed.’” Finley v. United States, 490 U.S. 545, 554 (1989) (quoting

Anderson v. Pac. Coast S.S. Co., 225 U.S. 187, 199 (1912)).

                                IV.    CONCLUSION

      Upon review of the statute’s plain language, structure, and statutory history,

we conclude that Section 31105(a)(1)(B)(i) unambiguously covers only those

situations where the record shows that operation of a motor vehicle would result in

the violation of a regulation, standard, or order related to commercial motor


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              Case: 11-14850      Date Filed: 03/11/2013      Page: 21 of 21

vehicle safety, health, or security. We therefore grant Koch Foods’ petition and

remand this case to the ARB for proceedings consistent with this opinion. 4

       PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.




4
  Because the case is vacated and remanded, the court need not determine whether the
determination of backpay and compensatory damages is supported by substantial evidence.

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